From Around the Blogs: Dutch FRAND Case, Fees 5 Years After Octane Fitness, and More

1.  On the IPKat Blog last week, Annsley Merelle Ward published a post by Léon Dijkman titled Dutch Court of Appeal injuncts unwilling licensee in first post-Huawei v ZTE FRAND decision.  The decision, Koninlijke Philips N.V. v. Asustech Computers Inc., was handed down on May 7, and Mr. Dijkman provides links to both the Dutch original and an English translation.  Mr. Dijkman notes, inter alia, that the defendant's "alleged willingness to enter into negotiations after the institution of the proceedings and a possible counteroffer in that regard cannot render the litigation abusive or trigger an obligation to stay the proceedings," and that the court "does not interpret Huawei/ZTE as obliging SEP holders to substantiate why their license offers are FRAND."    EPLaw also has a write-up, earlier noted on IPKat, here.

2.  Also on EPLaw (and earlier noted on IPKat) is a write-up, and link to an English language summary, in Graf v. Kaban & Daser, a decision of the Barcelona Commercial Court from last November, denying a request for an ex parte injunction against the exhibition of a device at a trade fair in Madrid.  The summary discusses the circumstances under which a patent owner should use a procedure known as a "preliminary verification of facts" to determine if a device infringes.

3.  Also on IPKat is a post by Peter Ling titled Does a “Launch At Risk” Automatically Exclude the Right to Appropriate Compensation for a Wrongfully-Issued Preliminary Injunction?  The post discusses a referral from the Metropolitan Court of Budapest to the CJEU, and AG Pitruzzella's opinion that the Enforcement Directive does not authorize member states to automatically deny compensation for a wrongly issued injunction if the defendant launched at risk (without having first sought to invalidate the patent in suit).

 

4.  As for the U.S., Ryan Davis published an article on Law360 last week titled 5 Things We've Learned in 5 Years Since Octane Fitness.  Citing data compiled by Nirav Desai, Mr. Davis presents descriptive statistics on the number of attorneys' fee motions filed and the grant rate post-Octane Fitness, and concludes that while fee awards have become more common, they are still unusual (as one would expect, given the statutory requirement that fees be awarded only if the case is exceptional).  Mr. Davis also discusses various factors that courts have considered in determining that a case is exceptional.

European Commission Communications on IP Rights

As I noted on November 30 (here), in addition to publishing a communication on the EU approach to SEPs on November 29 (see post here), the European Commission had also published two other communications relevant to IP enforcement, a Communication from the Commission to the Institutions on Guidance on certain aspects of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights and a Communication from the Commission to the Institutions - A balanced IP enforcement system responding to today's societal challenges. (There is also something called the "COMMISSION STAFF WORKING DOCUMENT: Overview of the functioning of the Memorandum of Understanding on the sale of counterfeit goods via the internet," described as an "Accompanying document to the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE: A balanced IP enforcement system responding to today's societal challenges," available here.)  The first of these is probably of greater importance to the law of remedies as such, though as the Commission notes it isn't legally binding, and in large part summarizes existing CJEU judgments on remedies, including the judgments in Stowarzyszenie ‘Oławska Telewizja Kablowa’ v. Stowarzyszenie Filmowców Polskich, Case C-367/15 on whether E.U. member states can award double damages for copyright infringement (see my blog post here), and in UnitedVideo Properties, Inc v Telenet NV, C-57/15 on the recovery of attorneys' and advisors' fees in IP cases (see my blog post here).  On these issues the document states, inter alia, the following:

Article 13(1)(b) of IPRED [the Intellectual Property Rights Enforcement Directive] does not preclude national legislation under which a holder of an infringed IPR may claim from the infringer the payment of a sum corresponding to twice the hypothetical royalty/fee. While Article 13(1)(b) of IPRED does not necessarily require such doubling of that hypothetical royalty/fee, the national legislation implementing this provision should enable the rightholder to demand that the damages set as a lump sum are calculated not only on the basis of the single amount of that hypothetical royalty/fee, but also on the basis of other appropriate aspects. This can include compensation for any costs that are linked to researching and identifying possible acts of infringement and compensation for possible moral prejudice or interest on the sums due. . . .

Article 14 of IPRED does not preclude national legislation providing for a flat-rate scheme to reimburse costs for a lawyer’s assistance, provided that those rates ensure that the costs to be borne by the unsuccessful party are reasonable, taking into account features which are specific to the case. However, Article 14 precludes national legislation providing for flat rates which are too low to ensure that, at the very least, a significant and appropriate part of the reasonable costs incurred by the successful party are borne by the unsuccessful party. . . .

Article 14 of IPRED applies to legal costs, which includes lawyers’ fees, as well as to other costs directly and closely related to the judicial proceedings concerned. The latter includes costs incurred for the services of a technical adviser, where those services are essential in order for a legal action to be usefully brought seeking, in a specific case, to have a right upheld.

Much of the document, however, discusses such topics as injunctions against intermediaries (often of greater relevance in the copyright and trademark arenas), preservation orders, the provision of security, confidentiality measures, and so on.  The Commission also has some kinds words about protective letters (a/k/a protective briefs or writs), an instrument by which "a defendant fearing to be sued for an IPR infringement (for instance, because it has received a warning letter from the rightholder) informs the competent judicial authorities in advance, (i.e. even before an application has been made), why the potential infringement claim is, according to the defendant, not founded," stating:

Although not expressly provided for in IPRED, the instrument of a protective brief can be seen as a good instrument to help balance, in a fair and proportionate manner, the various conflicting interests and fundamental rights at issue in relation to the possibility of issuing ex parte measures set out in Articles 7(1) and 9(4) of IPRED.

For previous metnion on this blog, see, e.g., here, here, and here.

Ferguson and Schneider on Enforcement of IP Rights in Africa

Vanessa Ferguson and Marius Schneider have published a paper titled Enforcement of Intellectual Property Rights in Africa in the April 2015 issue of the Journal of Intellectual Property Law & Practice, pages 269-79.  Here is a link to the article, and here is the abstract:

This article provides an overview of enforcement measures that are available to intellectual property right-holders on the African continent. Africa is rising—with comparatively high growth rates and a rising number of consumers—and so is the anti-counterfeiting challenge. There are, however, particularities when it comes to enforcing intellectual property rights in Africa which right-holders and practitioners will have to take into account.

The article examines the law and practice in relation to enforcement of intellectual property rights in the following countries and territories: Morocco, Algeria, Egypt, the African Intellectual Property Organization (OAPI), Nigeria, Ghana, Tanzania, Kenya, Uganda, Mauritius and South Africa.

The authors conclude that the enforcement of intellectual property rights in Africa remains a very complex issue, due to the absence of harmonisation of standards and procedures in relation to anti-counterfeiting measures. However, thanks to the efforts and the goodwill of right-holders, practitioners and law enforcement authorities, steady progress is being made when it comes to successful enforcement of intellectual property rights in Africa. 

Although most of the article focuses on measures against counterfeiting, there is also some discussion of border measures, preliminary measures, and civil and criminal penalties for infringement of IP rights generally, including under the Bangui Agreement to which the 17 OAPI states are members.

News from China on FRAND, Preliminary Injunctions, Damages

1.  The China-IPR Blog has published a post on the ABA Antitrust and International Sections' Comments on the Supreme People's Court's draft reforms relating to the law on preliminary injunctions.  The ABA sections express concern that the extension of the new rules to competition law matters could serve the interests of incumbents over new entrants.  The blog post argues, however, that at least in IP matters China needs to make preliminary injunctions more readily available, and asserts that preliminary injunctions were granted in only 1/8,000 IP matters in 2013.

2.   Rajiv Kr. Choudhry has a post on Spicy IP titled China Rules on Adjusted Royalty Base for SEP Licensing.  The article discusses (in much greater detail) the Qualcomm matter that I blogged about here.  The article includes a link to the decision of the National Development and Reform Commission (in Chinese) and a comparison of Chinese and Indian practice relating to, e.g., the selection of the appropriate royalty base.

3.  My student Joseph Patton alerted to me to this online article on a recent amendment to a document titled (in the article's translation) "Provisions on Issues concerning Applicable Laws to the Trial of Patent Controversies."  I believe the document referred to is an amended version of a 2001 document I referred to in my book, following Douglas Clark's translation, as "Several Provisions of the Supreme People’s Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes" or "Patent Trial Guidelines." The online article has a link to the Chinese text, which I plugged into Google Translate to get a better (albeit hardly perfect) sense of the intended changes.  If I understand correctly, though, the amendments to articles 20-22 (relating to damages) appear to conform the Patent Trial Guidelines to certain amendments that were introduced in the Third Revision of China's Patent Act in 2009.  For example, as I note in my book at page 354, article 21 of the 2001 Patent Trial Guidelines permitted courts to award damages multipliers of up to three times the amount of actual royalties, whereas article 65 of the statute states merely that "If it is hard to determine the losses of the patentee or the benefits acquired by the infringer, the amount of compensation may be determined according to the reasonably multiplied amount of the royalties of that patent."  The amended version of the Patent Trial Guidelines appears to conform with article 65 by removing the reference to "three times the amount of actual royalties."  Similarly, article 21 of the 2001 Patent Trial Guidelines authorized courts to award statutory damages of “more than RMB 5000 yuan and less than RMB 300,000 yuan, but not exceeding RMB 500,000 at most.”  As I noted at page 354, however, article 65 of the Patent Act doubled these amounts, and the amended Guidelines now simply refer to article 65 itself.  All of this should be taken with a grain of salt, however, until I succeed in obtaining a better translation of the amended guidelines.

4.  My book (again at page 354) also reports that, according to analysis performed by the online service CIELA China IP Litigation Analysis using data "from judgments published by the major IP courts around China," average damages from 2006 to 2011 in all types of patent cases in China ranged from RMB 64,964, (about U.S.$9,000) in 2007 to RMB 414,770 (about U.S.$60,000) in 2008 (with further breakdowns for invention patents, utility models, and design patents).  For CIELA's more recent and updated statistics, see here (reporting average damages for 2013 of RMB 99,030, though based on only 132 cases, and of RMB 51,635 for 2012 based on 470 cases).  Apparently CIELA continues to update its database with cases from earlier years as well, because some of the numbers I reported in my book are different as well. 

The IP Enforcement Provisions of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA)

On September 26, 2014, Canada and the European Union concluded negotiations on the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).  (The agreement has yet to be ratified, however, and my understanding is that that process may take some time; see this link from the EU's website.)  Part 22 of CETA (link here) is titled "Intellectual Property," and section 3 of Part 22 is titled "Enforcement of Intellectual Property Rights."  Section 3 deals partly with evidence and discovery (e.g., orders for turning over and preserving evidence). Articles 18-22 address injunctions, damages, and other remedies, and article 23 with the presumption of authorship and ownership.  Section 4 of Part 22 deals with border measures.  For now I'll just concentrate on comparing the provisions on injunctions, damages, and other remedies with the parallel provisions in the 2004 EC Enforcement Directive.  The provisions on border measures apply only to "counterfeit trademark goods, pirated copyright goods or counterfeit geographical indication goods," not patents.

For comparison, I've posted the CETA text on the left below, and the EC Enforcement Directive text on the right.

CETA	EC Enforcement Directive
Article 18 Provisional and Precautionary Measures 1. Each Party shall provide that its judicial authorities shall have the authority to order prompt and effective provisional and precautionary measures, including an interlocutory injunction, against a party, or where appropriate, against a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of an intellectual property right from occurring, and in particular, to prevent infringing goods from entering the channels of commerce. 2. Each Party shall provide that its judicial authorities have the authority to order the seizure or other taking into custody of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce. 3. Each Party shall provide that, in the case of an alleged infringement of an intellectual property right committed on a commercial scale, the judicial authorities may order, in accordance with domestic law, the precautionary seizure of property of the alleged infringer, including the blocking of its bank accounts and other assets. To that end, the judicial authorities may order the communication of relevant bank, financial or commercial documents, or access to other relevant information, as appropriate.	Article 9 Provisional and precautionary measures 1. Member States shall ensure that the judicial authorities may, at the request of the applicant: (a) issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by national law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the rightholder; an interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right; injunctions against intermediaries whose services are used by a third party to infringe a copyright or a related right are covered by Directive 2001/29/EC; (b) order the seizure or delivery up of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce. 2. In the case of an infringement committed on a commercial scale, the Member States shall ensure that, if the injured party demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his/her bank accounts and other assets. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information. 3. The judicial authorities shall, in respect of the measures referred to in paragraphs 1 and 2, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that the applicant’s right is being infringed, or that such infringement is imminent. 4. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 may, in appropriate cases, be taken without the defendant having been heard, in particular where any delay would cause irreparable harm to the rightholder. In that event, the parties shall be so informed without delay after the execution of the measures at the latest.  A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable time after notification of the measures, whether those measures shall be modified, revoked or confirmed. 5. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 are revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer. 6. The competent judicial authorities may make the provisional measures referred to in paragraphs 1 and 2 subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 7. 7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures.
Article 19 Other remedies 1. The Parties shall ensure that the judicial authorities may order, at the request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort, the definitive removal from the channels of commerce, or the destruction, of goods that they have found to be infringing an intellectual property right. The Parties shall ensure that the judicial authorities may order, if appropriate, destruction of materials and implements predominantly used in the creation or manufacture of those goods. In considering a request for such remedies, the need for proportionality between the seriousness of the infringement and the remedies ordered, as well as the interests of third parties, shall be taken into account. 2. The Parties shall ensure that the judicial authorities have the authority to order that those remedies shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.	Article 10 Corrective measures 1. Without prejudice to any damages due to the rightholder by reason of the infringement, and without compensation of any sort, Member States shall ensure that the competent judicial authorities may order, at the request of the applicant, that appropriate measures be taken with regard to goods that they have found to be infringing an intellectual property right and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture of those goods. Such measures shall include: (a) recall from the channels of commerce; (b) definitive removal from the channels of commerce; or (c) destruction. 2. The judicial authorities shall order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so. 3. In considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 20 Injunctions 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party, or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce. 2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available against use by government, or by third parties authorized by government, without the use of authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a Party's law, declaratory judgments and adequate compensation shall be available.	Article 11 Injunctions Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC. Article 12 Alternative measures Member States may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this section, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this section if that person acted unintentionally and without negligence, if execution of the measures in question would cause him/her disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 21 Damages 1. Each Party shall provide that: (a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights to pay the right holder: (i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or (ii) the profits of the infringer that are attributable to the infringement, which may be presumed to be the amount of damages referred to in paragraph (i); (b) in determining the amount of damages for infringements of intellectual property rights, its judicial authorities may consider, inter alia, any legitimate measure of value that may be submitted by the right holder, including lost profits. 2. As an alternative to the previous paragraph, a Party's law may provide for payment of remuneration, such as a royalty or fee, to compensate a right holder for the unauthorized use of its intellectual property.	Article 13 Damages 1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement. When the judicial authorities set the damages: (a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement; or (b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. 2. Where the infringer did not knowingly, or with reasonable grounds know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established.
Article 22 Legal Costs Each Party shall provide that its judicial authorities, where appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings concerning the enforcement of intellectual property rights, that the prevailing party be awarded payment by the losing party of legal costs and other expenses, as provided for under that Party's law.	Article 14 Legal costs Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.

To my mind, the most notable differences are, first, that the CETA provision on injunctions doesn't have a parallel to Enforcement Directive article 12, which explicitly authorizes member states to "provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this section, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this section if that person acted unintentionally and without negligence, if execution of the measures in question would cause him/her disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory."  (Article 13(2) of the CETA IPR chapter, however, does state "In implementing the provisions of this Sub-Section, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties.")  It has long seemed to me that article 12 of the Enforcement Directive would permit members of the EC to enact an eBay-like rule for injunctive relief, though none of the large patent litigation systems in Europe have yet taken the bait.  The absence of such a provision in CETA, of course, wouldn't prevent Canada from doing so, and it does appear on the basis of limited evidence that Canadian courts are willing to deny injunctions in at least some cases, though probably not to the extent permitted under the U.S. eBay decision.  (See my book, pp. 181-82.)  Second, CETA article 21(a) appears to view awards of defendant's profits ("the profits of the infringer that are attributable to the infringement, which may be presumed to be the amount of damages referred to in paragraph (i)") as an alternative to awards of lost profits, while the status of such awards is somewhat unclear under the Directive.  (Countries such as the UK and Germany have traditionally permitted such awards as an alternative to lost profits while France did not, and exactly what the Directive means in article 13(a) by "they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement" remains a matter of debate.  See, for example, my posts here and here.

It will be interesting to see if any of these or other matters relating to enforcement of IP rights come up in the debates over ratification. Hat tip to Norman Siebrasse for calling the CETA IP provisions to my attention.

News from France on Injunctions

1.  Benjamin May and Marie Liens have published an article titled Brevets Pharmaceutiques:  Approche Pratique du Contentieux des Mesures d'Interdiction Provisoire ("Pharmaceutical Patents:  A Practical Approach to Litigating Provisional Measures") in the June 2014 issue of Propriété Industrielle.  Here is the abstract (my translation from the French):  

The launch of a generic drug is a sensitive moment:  too early, and the patent owner can obtain an injunction; too late, and the generic firm will lose the boost of being the first on the market and will see its profit margins fall.  The present study proposes an analysis of the pivotal dates of the process as well as a practical approach to litigation options.  

The relevant portion of the French Intellectual Property Code is article 615-3, which I discuss in my book at pp. 242-43.  In relevant part, the statute reads:

Toute personne ayant qualité pour agir en contrefaçon peut saisir en référé la juridiction civile compétente afin de voir ordonner, au besoin sous astreinte, à l'encontre du prétendu contrefacteur ou des intermédiaires dont il utilise les services, toute mesure destinée à prévenir une atteinte imminente aux droits conférés par le titre ou à empêcher la poursuite d'actes argués de contrefaçon. La juridiction civile compétente peut également ordonner toutes mesures urgentes sur requête lorsque les circonstances exigent que ces mesures ne soient pas prises contradictoirement, notamment lorsque tout retard serait de nature à causer un préjudice irréparable au demandeur. Saisie en référé ou sur requête, la juridiction ne peut ordonner les mesures demandées que si les éléments de preuve, raisonnablement accessibles au demandeur, rendent vraisemblable qu'il est porté atteinte à ses droits ou qu'une telle atteinte est imminente.

My very unofficial translation would be something like this:

Any person with a right to assert a claim for infringement may commence an emergency civil proceeding to obtain, if necessary under compulsion, against an alleged infringer or the intermediaries whose services he uses, any measure intended to prevent an imminent harm to the rights conferred by this act or to cease alleged acts of infringement.  The competent civil court may also order any such urgent measures ex parte when the circumstances demand that they be taken without opposition, especially when any delay may be of a type to cause irreparable harm to the movant.  In either case, the court should order the requested measures only if the elements of proof, reasonably accessible to the movant, make it probable that it is suffering an injury to its rights or that such an injury is imminent.    

The authors state that ex parte (sur requête) injunctions are almost never granted, and provide some examples from the case law (pp. 17-19).  They also note that preliminary injunctions are granted only in about a third of the pharmaceutical cases in which they are requested (p.20).  The discuss which actions on the part of the defendant qualify as potentially imminent acts of infringement (pp. 16-17).  They also note conflicting positions on the question of the extent to which the judge hearing the motion for a preliminary injunction may consider the validity of the patent.  The current version of article 615-3 uses the word "vraisemblable" (probable) in place of the former version's "caractère sérieux de l’action au fond" (serious nature of the underlying action), and some though not all judges have taken this to mean that they may consider invalidity (as opposed to infringement) only when it is manifest, rather than probable.  They also note, among other things, that judges only rarely order the patentee to provide security, although as in many countries the defendant against whom a preliminary enjoined is ordered may subsequently demand compensation if, for example, the patent is invalidated (though in France, as in the U.S., not if the invalidation occurs after the judgment has become final).

2.  The August 1, 2014 issue of  Propriété Industrielle Bulletin Documentaire (PIBD) reprints Written Question E-005062-14 of April 17, 2014 submitted to the European Parliament by Marc Tarabella, and the response dated July 4, 2014 by M. Barnier in the name of the European Commission.  The question and answer are also available from the European Parliament's website, so I'll reprint them in their English translation from that source:

Subject:  A European Unified Patent Court faced with a twin-track court system  

A working group consisting of representatives of the Member States is currently examining the draft regulation of the Unified Patent Court. The 15th draft regulation allows a twin-track procedure in two independently competent courts, one which rules on questions relating to the validity of a patent, the other on questions of breach. 

This introduces a considerable risk, namely that the Court determining a breach could issue an injunction excluding products from the market before the court with competence over validity has established that the patent is valid, thus penalising European companies even though their behaviour is entirely lawful.

Meanwhile, the Directorate General for Competition is concerned about abuses of a dominant position by companies which have sought to abuse their patent rights.

Does the Commission agree with injunctions that should not be applied on invalid patents?

Joint answer given by Mr Barnier on behalf of the Commission 

Written questions :E-005062/14 , E-005064/14 , E-005065/14

The questions raised by the Honourable Member concern the on-going work on the creation of the Unified Patent Court (UPC) and all raise similar concerns.

The Commission respectfully refers the Honourable Member to its reply to Written Question E-012200/13 and notes again that the Agreement on a Unified Patent Court (UPC) is an agreement concluded under international law and which, as such, is not part of EC law. As concerns the conditions for the granting of preliminary injunctions in the procedure before the UPC, in the abovementioned reply the Commission already provided the relevant factual information. In addition to that, the Commission may only reiterate that the Rules of Procedure in respect of the questions raised by the Honourable Member must provide for the requisite legal certainty. As to the measures taken by the court, they will have inter alia to comply with the basic principles of fairness, equitable treatment and proportionality.