A Couple of More New Papers on Proportionality and Injunctions

1. Maciej Padamczyk and Duncan Matthews posted a paper on ssrn titled Proportionality and Patent Injunctions, which also appears as a chapter in European Patent Law: The Unified Patent Court and the European Patent Convention (D. Matthews & P. Torremans, eds., De Gruyter 2023).  Here is a link to the paper, and here is the abstract:

This chapter assesses how the concept of proportionality might be applied in the context of rising concerns about the perceived undesirable outcomes of final injunctions in patent cases, especially before the newly established Unified Patent Court (UPC), authorized to issue injunctions covering the territories of all Contracting Member States. First, the chapter discusses the policy considerations underlying the issuance of injunctions in patent cases, including the problem of anticommons, royalty stacking, non-practicing entities and patent trolls. Then, it proceeds to explain the theoretical interpretations of the concept of proportionality and its application on the international, i.e., WTO and EU, and national level, with examples from the Unites States, United Kingdom and Germany. Subsequently, an attempts is made to predict how the concept of proportionality might impact the jurisprudence of the UPC. Finally, the chapter then discusses preliminary injunctions, underlining their specific character as compared to final injunctions. It concludes that the likely future use of proportionality in patent injunctions cases will depend on the general understanding of the role of the patent system and the society’s convictions as regards its utility.

2. Léon Dijkman published Verhältnismäßigkeit im Patentrecht:  Der dritte Weg ("Proportionality in Patent Law:  The Third Way"), 24/2023 GRUR 1737.  Here is the abstract, in my translation from the German:

The narrow perspective on proportionality in patent law, under which proportionality contributes nothing to the existing protections for infringers, is no longer sustainable, in view of economic, technological and legal developments, especially the European rights framework for the enforcement of patents.  Nevertheless, critics are right to assert that incorporating a balancing of interests into claims for injunctive relief, as the broad perspective advocates, would lead to legal uncertainty and arbitrary outcomes.  A proportionality test therefore must be developed, which I sketch out in this article.

The article summarizes some of the content set forth in greater detail in Dr. Dijkman’s new book The Proportionality Test in European Patent Law Patent Injunctions Before EU Courts and the UPC (Hart Publishing 2023) The Proportionality Test in European Patent Law, previously noted here.