tag:blogger.com,1999:blog-5202549570150301909.post1247259926240359692..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Remedies for Wrongful Patent Litigation or Enforcement in Some Other Leading Patent SystemsThomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5202549570150301909.post-67043467580349176872013-06-05T08:26:21.273-07:002013-06-05T08:26:21.273-07:00Very interesting comment--thanks. The UK/Canadian...Very interesting comment--thanks. The UK/Canadian approach makes sense to me.Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-5163354891193715102013-06-05T05:15:38.833-07:002013-06-05T05:15:38.833-07:00Grosskopf & Medina state that one reason that ...Grosskopf & Medina state that one reason that the party obtaining a preliminary injunction is not usually liable for the full amount of the harm caused in US practice is that “the trial court has the power – and perhaps even the duty – to consider the equities of the case before imposing liability upon the bond and awarding damages by extracting from the bond that was created prior to the proceedings.” The same is true in UK and Canada, but consideration of the equities led to exactly the opposite conclusion. The courts considered that it would be very hard on the defendant to deny them what might turn out to be their legal rights, so without compensation for loss of those rights the equities normally favour refusing the injunction. The UK and Canadian courts clearly have the discretion to grant a preliminary injunction without requirement an undertaking from the plaintiff to compensate the defendant, but they are very reluctant to do so. <br /><br />An excellent analysis in a law and economics vein is provided by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 (Ch.): “The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described.” By minimizing the risk of harm to the defendant if the injunction is wrongly granted, the undertaking by the plaintiff increases the likelihood that the injunction will be granted.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com