U.S. Supreme Court Grants Cert. in Disgorgement of Profits Case

It's a trademark case, but it raises an important policy question for any body of law that permits courts to award the defendant's profits as a remedy for infringement.  The case is Romag Fasteners, Inc. v. Fossil, Inc., Case No. 18-1233 (U.S. June 28, 2019).  The question presented is "Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a)."  Here is a link to the Scotus Blog webpage for the case, and here is a link to my previous mention of it on this blog (where I stated that "this is an important issue of federal trademark law . . . and . . . at some point it might be useful . . . for the Supreme Court to resolve the circuit split").  I have argued before that, as a policy matter, a requirement that the defendant willfully infringed probably makes sense, in order to avoid a substantial risk of overdeterrence.  As my coauthors and I have stated:

Strictly speaking, in trademark cases the defendant’s profit attributable to the infringement should be only the amount above what the defendant would have made had it used the next-best available trademark.  In cases of innocent infringement, it may be fair to assume that the defendant would have made about the same profit had it chosen a different mark.  When the infringement was willful, by contrast, it may be reasonable to assume that a good portion (maybe all, in the case of outright counterfeiting) of the defendant’s profit was attributable to consumers’ incorrect association of the defendant’s products with the plaintiff’s.  To avoid the risk of overdeterrence, courts therefore may be wise to limit restitutionary awards to cases of willful trademark infringement, at least if they are willing to award reasonable royalties in lieu of defendant’s profits in cases involving non-willful infringement.

Barton Beebe, Thomas F. Cotter, Mark A. Lemley, Peter S. Menell & Robert P. Merges, Trademarks, Unfair Competition, and Business Torts 393 (Wolters Kluwer 2d ed. 2016) (citing Roger D. Blair & Thomas F. Cotter, Intellectual Property:  Economic and Legal Dimensions of Rights and Remedies (Cambridge Univ. Press 2005)).  For my thoughts on this issue in patent law, see this post from 2013 (point # 2); see also chapter 2 from Patent Remedies for Complex Products, where (at p.143) my coauthors and I argue that, in countries in which disgorgement of profits is available as a remedy for patent infringement, it should be discretionary, not a matter of right.

"Patent Remedies and Complex Products" Is Now Available

I just received word that Patent Remedies and Complex Products:  Toward a Global Consensus (Brad Biddle, Jorge L. Contreras, Brian J. Love & Norman V. Siebrasse eds., Cambridge Univ. Press 2019), is now available in print.  I understand that the book also will available on an open-access basis shortly.  Here is CUP's webpage for the book, and here is Amazon.com's.  

As I have mentioned before on this blog (see, e.g., here), the book is the work of the International Patent Remedies for Complex Products project, of which I was fortunate to be a part.  (INPRECOMP began as a joint venture between the Center for Law, Science and Innovation (CLSI) at Arizona State University's Sandra Day O'Connor College of Law and the Dickson Poon School of Law at King's College London, and is primarily funded by a gift to CLSI from Intel.)  It was a terrific experience working with the editors and other scholars involved in this project, and I hope that the book will achieve a wide readership not only among academics but also among lawyers, judges, and other professionals involved in the global patent system.  Reviews would be most welcome!

 

 

Here is the table of contents:

Foreword by the Honorable Kathleen M. O'Malley
 

Introduction
 

1. Reasonable royalties.  Thomas F. Cotter, John M. Golden, Oskar Liivak, Brian J. Love, Norman V. Siebrasse, Masabumi Suzuki and David O. Taylor
 

2. Lost profits and disgorgement.  Christopher B. Seaman, Thomas F. Cotter, Brian J. Love, Norman Siebrasse and Masabumi Suzuki
 

3. Enhanced damages, litigation cost recovery, and interest.  Colleen V. Chien, Jorge L. Contreras, Thomas F. Cotter, Brian J. Love, Christopher B. Seaman and Norman V. Siebrasse
 

4. Injunctive relief.  Norman V. Siebrasse, Rafal Sikorski, Jorge L. Contreras, Thomas F. Cotter, John M. Golden, Sang Jo Jong, Brian J. Love and David O. Taylor
 

5. The effect of FRAND commitments on patent remedies.  Jorge L. Contreras, Thomas F. Cotter, Sang Jo Jong, Brian J. Love, Nicolas Petit, Peter Picht, Norman V. Siebrasse, Rafal Sikorski, Masabumi Suzuki and Jacques de Werra
 

6. The effect of competition law on patent remedies.  Alison Jones and Renato Nazzini
 

7. Holdup, holdout, and royalty stacking: a review of literature.  Norman V. Siebrasse
 

Bibliography

Federal Circuit Affirms Use of Settlement to Determine a Reasonable Royalty

The opinion, published today and authored by Judge Taranto (joined by Judges Mayer and Chen), is Elbit Systems Land and C4I Ltd. v. Hughes Network Systems, LLC.  A jury determined that Hughes infringed claims 2 and 4 of Elbit’s U.S. Patent No. 6,240,073, which "claims a system for transmitting information from user terminals to a central hub using satellite communication" (p.2).  The court affirms on liability, and then proceeds to reject three challenges to the $21,075,750 damages award. 

First, the court rejects the argument that it was improper for Mr. Martinez to base his royalty estimate on a prior settlement between defendant Hughes and another firm, Gilat:

We have previously explained that prior settlements can be relevant to determining damages. Prism Techs. LLC v. Sprint Spectrum L.P., 849 F.3d 1360, 1369 (Fed. Cir. 2017). Not every settlement will be relevant, and some, while probative, will introduce a danger of unfair prejudice that substantially outweighs the probative value. Id. Thus, whether in using a settlement agreement at all or in drawing the appropriate lessons from the particular settlement for the case in which it is being used, relevant circumstances—such as similarities and differences in technologies and market conditions and the state of the earlier litigation when settled—must be carefully considered. Id. at 1370–71. Use of actual past licenses and negotiations to inform the hypothetical negotiation does not “require[] identity of circumstances.” Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1330 (Fed. Cir. 2014). Instead, the prior licenses or settlements need to be “sufficiently comparable” for evidentiary purposes and any differences in circumstances must be soundly accounted for. . . . 

Mr. Martinez relied on a prior settlement and appropriately accounted for differences between the circumstances of that settlement and the present circumstances. The relied-on settlement was one between Hughes itself and Gilat, another satellite internet company. The Gilat Agreement was the result of a suit that Hughes, as patent owner, filed against Gilat for allegedly infringing Hughes’s older satellite communication system, which used satellite communication for only one direction (hub to terminals) of the transmission. Mr. Martinez testified to how what Hughes received in that settlement provided relevant evidence for determining what Hughes reasonably should pay as a royalty for use of Elbit’s technology at issue here.

Relevant facts considered by Mr. Martinez include the following. The Gilat Agreement occurred only four months after the agreed-on date of the hypothetical negotiation posited for determining the reasonable royalty in this matter. . . . The time periods for assessing value in the satellite-service marketplace were therefore very close. The technologies were also related for purposes of determining market value. . . . The Gilat Agreement involved obtaining internet access using one-way satellite communication, and the ’073 patent involves obtaining internet access using two-way satellite communication. All three companies, Gilat, Hughes, and Shiron (Elbit’s predecessor) participated in the satellite internet-access market. While Hughes and Gilat were established competitors and Shiron was a start-up, Shiron had the “breakthrough technology,” J.A. 1720, that represented “the next generation” of internet access, J.A. 1717, while the Gilat Agreement concerned “the old one-way product,” J.A. 1717–18.

Mr. Martinez attended to all of those facts. Mr. Martinez also accounted for the fact that the Gilat Agreement was a settlement prompted by litigation. . . . In the end, he relied on the per-unit figure in the Gilat Agreement for one-way technology, together with Hughes-based evidence that two-way technology was worth at least an additional 20%, to arrive at his proposed per-unit figure—which the jury adopted (pp. 12-14).

For previous discussion of Prism Technologies on this blog, see here.  Second, the court rejects a challenge based on the apportionment principle:

Mr. Martinez testified that apportionment “is essentially embedded in [the] comparable value” from the Gilat Agreement concerning a comparable component of a larger product or service. . . . Rather than “parse out a value for each of the claims,” Mr. Martinez “came up with a market, comparable royalty rate, and then [he] adjusted it as necessary” for the hypothetical negotiation. . . . As we have noted, to reach his final figure, he increased the royalty by 20% from the Gilat Agreement, Hughes executives having made statements indicating that the two-way system provided a 20% increase in value over the old one-way system. . . .

Mr. Martinez’s approach is consistent with our precedent concerning the apportionment requirement that a royalty should reflect the value of patented technology. . . . In CSIRO, the district court started with evidence of proposed royalty rates from the parties’ prior attempts at negotiating a license for the patent. . . . We determined that the district court’s analysis was not in error because it “already built in apportionment” by starting from “discussions centered on a license rate” for the same patent, those discussions having already informally apportioned the proposed license rates to the value of the patented technology. . . . Hughes has not shown the unreasonableness of that analysis of how a negotiation can fulfill the apportionment requirement. And this case is relevantly similar. Mr. Martinez’s testimony allowed the jury to find that the components at issue, for purposes of apportionment to the value ponents at issue in the Gilat-Hughes agreement, and Hughes introduced no evidence that precluded such a finding. Gilat and Hughes would have had to consider the benefit from the patented technology over other technology and account for that in the Gilat Agreement. As a result, when Mr. Martinez used the Gilat Agreement as his starting point, his analysis could reasonably be found to incorporate the required apportionment (pp. 15-16).

Finally, the court concludes that Mr. Martinez's testimony did not inappropriately refer to the entire market value of Hughes's products:

At three points in his testimony, Mr. Martinez referred to the revenue Hughes receives from service fees for an average customer over the course of that customer’s time buying the relevant service from Hughes. First, in explaining how he arrived at his reasonable royalty rate, he stated, based on his expert report, that he “determined that Hughes earns approximately $2500 of revenue per customer,” on average, from its DirecWay, HN, HX, and HT products. . . . Second, the $2500 number was referenced in his conclusion that $18 was a reasonable royalty because “[$]18 is a smaller portion of the $2500.” . . . According to Mr. Martinez, it was “reasonable” for “Hughes to pay $18 in order to get approximately $2500 worth of revenue.” . . . Finally, in summarizing his analysis, he reiterated that a royalty rate of $18 was “very reasonable given the $2500 of revenue that Hughes derives from the products.” . . . Hughes does not identify, and the transcript at those passages does not reveal, an objection by Hughes to that testimony.

Mr. Martinez’s reference to life-of-service customer-specific (service) revenue from relevant products does not fall into a pattern we have specifically disapproved. The $2500 customer-specific reference is not the same as Uniloc’s reference to Microsoft’s $19 billion in company-wide revenue. Nor did Mr. Martinez use a high price of a multi-component overall product or service as a base, multiplied by a percentage, in a rate-base running-royalty calculation. Rather, he calculated a flat per-unit dollar figure based on a license examined for comparability and checked the reasonableness of the resulting figure, as part of a hypothetical-negotiation analysis, against a life-of-relationship service-revenue figure for an average customer. This analysis may be more akin to the reliance on licenses that was the subject of Ericsson, where we upheld a license-based calculation that relied on product value, concluding that, under the evidentiary principle grounded in a prejudice-probativeness balance, such a methodology is not automatically reversible error. Ericsson, 773 F.3d at 1228.

We do not decide here how the evidentiary principle at issue would apply to testimony of the sort Mr. Martinez gave if the testimony stood alone and an objection were made in a timely fashion with an adequate explanation of why Mr. Martinez’s particular analysis created the kind of prejudice that substantially outweighs probative value of the type targeted by the evidentiary principle at issue. But the pretrial motion to which Hughes points as raising the present issue did not identify a reference of the sort Mr. Martinez made and seek and support its exclusion. . . . Then, at trial, as far as we have been shown, there was no objection by Hughes and no judicial ruling that opened the door to what Hughes itself did—namely, affirmatively use Uniloc-type evidence. Specifically, Hughes itself referred to a figure representing company-wide revenue, see J.A. 10183, despite the pretrial agreement about exclusion of “total revenues,” J.A. 119; J.A. 156, and in closing argument, Hughes called the jury’s attention to the exhibit disclosing that figure, J.A. 2566. In these circumstances, whether as a matter of forfeiture or as a matter of insufficiency of a showing of prejudice from the Elbit testimony under the principle invoked by Hughes, we see no reversible error in the district court’s refusal to grant a new trial (pp. 17-19).

The court decided not to review the district court's finding that the case was exceptional, and thus potentially meriting attorneys' fees, because the district court had not yet quantified the amount of fees, if any, that will be assessed against Hughes (pp. 19-24).

In another case decided today, Cellspin Soft, Inc. v. Fitbit, Inc., the court reverses a judgment (1) dismissing infringement claims for lack of patentable subject matter, and (2) awarding fees to the prevailing defendants.  Though not necessary to the outcome on appeal, the appellate court rejects the district court's finding of exceptionality premised on the latter's conclusion that "Cellspin should have filed a 'test case' before asserting its patents here" and its faulting of "Cellspin for amending its complaint just a few days before the scheduled hearing on Appellees’ motions to dismiss" (pp. 23-24).

Ard on Property Rules and Liability Rules

B.J. Ard has published a paper titled More Property Rules Than Property?  The Right to Exclude in Patent and Copyright, 68 Emory L.J. 685 (2019).  Here is a link to the paper, and here is the abstract:

Patent and copyright rely more consistently on property rules than property law itself. While IP law is intended to enhance intellectual production, the property-rule remedies of injunctive relief and punitive damages sometimes conflict with this goal. In particular, these remedies may dampen innovation by imposing unjustified costs on unwitting infringers and allowing opportunists to hold up projects that implicate several parties’ rights. Both problems could be ameliorated by strategic deployment of liability rules, and the law of tangible property demonstrates how this strategy might work. While we might assume that the law protects tangible property with property rules, closer scrutiny shows that courts and lawmakers use liability rules to deal with unintentional trespasses and to circumvent holdout problems involving real property.

This analysis yields three payoffs. First, it develops the novel and counterintuitive argument that IP deploys property rules in many circumstances where property law would use liability rules. This arrangement is backwards because the greater notice failures, inexhaustibility, and importance of building on others’ work inherent to intellectual production counsel in favor of liability rules. Second, it grounds the theoretical debate over the use of property rules versus liability rules in IP in real property doctrine, where courts and lawmakers have taken the pragmatic approach of structuring entitlements to facilitate economic progress. Finally, it identifies ways the choice of remedies could serve as a concrete policy lever to address issues in IP: (1) IP law could correct notice failures by creating a “reasonable search defense”—eliminating property-rule protection in cases of accidental infringement—to encourage users to search and owners to publicize their claims; (2) courts could defuse holdout strategies by denying property-rule protection to IP owners who refused to bargain in good faith; and (3) the state could pursue important policy objectives by employing—or threatening to employ—its authority to enact compulsory licenses.

It's an interesting paper, and worth a read--though I have some reservations about the thesis that IP law (in the U.S., post-eBay) needs to move any further that it already has in the direction of a liability-rule type of system.  Professor Ard's argument that IP law should adopt a "reasonable search" defense is interesting, though; and while I'm not sure I'm on board with that 100%, I do agree that courts should consider the difficulty of clearing the relevant IP in advance, in evaluating whether to grant or deny injunctive relief, because holdup is more likely to occur when such clearance is difficult.

FRAND News

1.  Emma Flett and John Patten have published a short article titled Court of Appeal Furthers the UK's Bid to the SEPs Capital of Europe, 41 EIPR 385 (2019).  Here is the abstract:  

On 30 January 2019, the English Court of Appeal handed down judgment in Conversant Wireless Licensing Sàrl v Huawei Technologies, essentially reiterating its 2018 judgment in Unwired Planet v Huawei, that standard-essential patent (SEP) holders may, under certain circumstances, use the English courts to obtain a licence against would-be infringers on fair, reasonable and non-discriminatory (FRAND) terms which covers the SEP-holders’ global SEP portfolio (although which only has binding applicability and enforceability in relation to UK SEPs). This latest decision develops the English courts’ position with regard to the issue of forum conveniens in UK patent infringement, invalidity and essentiality litigation, emphasising their willingness to accept jurisdiction to determine global FRAND rates and licence terms regardless of the magnitude of the nexus to the UK market.

As noted here, both of the cases referenced above are now pending before the U.K. Supreme Court.  

2. Florian Mueller recently published a post titled Broadbased IoT industry support for CWA2 set of standard-essential patent (SEP) licensing guidelines and best practices, which links to two competing documents proposing differing approahces to SEP/FRAND matters: (1) CEN Workshop Agreement, CWA 95000, Core Principles andApproaches for Licensing of Standard Essential Patents 10 (June 2019), and (2) CEN Workshop Agreement, CWA 17431, Principles and Guidance for Licensing StandardEssential Patents in 5G and the Internet of Things (IoT), Including theIndustrial Internet (June 2019).

3. IPKat published a post by Axel Ferrazzini on the Oberlandesgericht Düsseldorf's Unwired Planet v. Huawei decision, previously mentioned here.

4.  Informally, I have heard that the discussion on whether to amend Germany's patent statute to allow more flexibility in regard to the granting of injunctions, held by the German Ministry for Justice and Consumer Protection on May 20 (see here and here), did not result in any consensus to make such an amendment, but I haven't seen any write-ups yet.  If and when I do, I will pass them along.

Update:  I just found this article on JUVE Patent discussing the May 20 meeting. According to the article, it is unlikely that Germany will get rid of automatic injunctions, but it may introduce some reforms, such as more frequent use of stays pending invalidation proceedings and stays pending design-around (the so-called "grace period," or in German Aufbrauchfrist).

New Book on Enforcement of IP Rights in the EU

Flip Petillion has published an edited volume titled Enforcement of Intellectual Property Rights in the EU Member States (Intersentia Ltd 2018).  Here is a link to Intersentia's webpage, and here is the book description:

Enforcement of Intellectual Property Rights in the EU Member States provides a timely overview and thorough analysis of intellectual property rights enforcement in the EU Member States. Taking legal action in one or several countries in the EU to enforce intellectual property rights is quite a challenge. The adoption of European Directive 2004/48/EC on the Enforcement of Intellectual Property Rights was meant to put a halt to considerable discrepancies in national legislations which caused uncertainty and a difference in enforcement between the EU Member States. The Enforcement Directive aimed to create a level playing field and to ensure a high, equivalent and homogeneous level of intellectual property protection across the EU.

Over the past decade, the Enforcement Directive has been transposed into all EU Member States, in national legislation and through its application in national and EU case law. Both are essential to understand the Enforcement Directive’s actual scope of application. In order to prepare and undertake an action in different countries – potentially simultaneously – knowledge of national legislation, local custom and practice, as well as procedural law, national and EU case law is essential.

This book is a collaborative effort of lawyers from top tier firms from all 28 EU Member States. It is a valuable resource for both practitioners – who are active cross-border and internationally – and general counsel – who seek an in-depth analysis of the legal landscape across the EU.

For a review on the IPKat Blog, see here.

Vigand and Raynard on the Cour de Cassation's Profits Decision

In March I blogged about a recent decision of France's Cour de Cassation, Carrera SARL et Texas de France SAS v. Muller et Cie, PIBD No. 1112, III, 120 (Jan. 23, 2019), which held that a court may take into account the defendant's profits attributable to the infringement in a case brought by a nonpracticing patent owner, and that the owner is not limited to a reasonable royalty.  The May 2019 issue of Propriété Industrielle (pp. 21-25) includes the text of the decision, with commentary by Privat Vigand and Jacques Raynard.  Although the authors disagree with the court's conclusion on liability, they approve of the court's decision on damages, noting that an NPE may suffer economic harm (in the form of lost payments from its licensees, or loss of sales on products that compete with or substitute for the infringing product), and that allowing the court to consider the defendant's profit may enable the compensation of these losses.  The authors also note that, while the court indicated that damages for moral prejudice might be appropriate when, for example, the patent owner suffers a loss to its reputation, there was a failure of proof on this heading here.   

My Law360 Article on Makan Delrahim's OECD Speech

My article on Makan Delrahim's June 6, 2019 OECD speech, titled Delrahim’s Antitrust Approach To FRAND Still Problematic, is now available on Law360, and also here. Enjoy!

And now, I really will start that blogging break . . .

Delrahim's OECD Speech on FRAND; New FRAND Decision from Germany

I will be taking a blogging break next week (June 10-15).  Before I go, here a couple of items that readers might find interesting:

1.  U.S. Antitrust Division chief Makan Delrahim delivered a speech titled “Don’t Stop Thinking About Tomorrow”: Promoting Innovation by Ensuring Market-Based Application of Antitrust to Intellectual Property, at an OECD Roundtable held in Paris yesterday.  Here is a link to the speech, in which Mr. Delrahim reiterates his view that "violating a FRAND commitment, by itself, should not give rise to an antitrust claim."  And here is a link to the OECD webpage titled "Licensing of IP rights and competition law," which includes short video takeaways from Koren Wong-Ervin and Herbert Hovenkamp, and links to other supporting materials.

2.  On the Kluwer Patent Blog, Thomas Musmann has published a post titled The ‘Non-Discriminatory’ Prong is ‘Essential’ to FRAND Evaluation – Unwired Planet v Huawei – Oberlandesgericht Düsseldorf.  Mr. Musmann discusses a March 22, 2019 decision of the  Oberlandesgericht Düsseldorf.  I haven't read the decision yet myself (link here, in the original German), but according to Mr. Musman, among the key takeaways are that (1) Unwired Planet is bound by the FRAND commitment made by its assignor, Ericsson; (2) that the assignor's licensing practices "set[ ] the benchmark for the [nondiscriminatory] prong for any future licenses";  (3) "the assignee cannot deviate from the license practice of the previous SEP owner unless there are objective reasons justifying the different treatment, for which the SEP owner has the burden of proof"; (4) the SEP owner must "disclose the content of all license agreements that the current and the previous SEP owner concluded," notwithstanding confidentiality agreements; and (5) German courts will require strict compliance with the Huawei v. ZTE back-and-forth of offer, counteroffer, etc. (in contrast to the English courts' view of that procedure as a "safe harbour").  This case will now go on to the BGH, where two Sisvel v. Haier FRAND cases are already pending.

More Commentary on FTC v. Qualcomm

1.  Erik Hovenkamp has posted an essay titled FTC v. Qualcomm: New Frontiers in the Antitrust-IP Interface, forthcoming in Regulatory Review, on ssrn.  Here is a link, and here is the abstract:

The Federal Trade Commission recently scored a substantial victory in its antitrust suit against Qualcomm. The case represents a novel confluence of standard-setting and IP licensing issues with bedrock antitrust subjects: tying and exclusive dealing. It also takes a surprising turn in resuscitating the long-dormant doctrine of the antitrust “duty to deal.” In this short essay, I review and evaluate the court’s decision in FTC v. Qualcomm. The analysis of Qualcomm’s exclusive dealing is sound and very likely correct. However, the court’s duty-to-deal analysis sits on shakier ground, omitting consideration of potential immunity under the Patent Act and sidestepping thorny questions on the appropriate source of law. 

2.  For a decidedly different view of the case, see, e.g., Jonathan Barnett's post titled Qualcomm ruling a case of antitrust gone wrong on The Hill; James Edwards's post titled Restoring IP Rights After the Destructive, Unjust Antitrust Rendering in FTC v. Qualcomm, on IP Watchdog; Richard Epstein's post Judge Koh Is No 5G Wiz, on Defining Ideas:  A Hoover Institution Journal; and Adam Mossoff's post on the Federalist Society Blog titled An Unprecedented Conflict Between the FTC and DOJ at the Intersection of Antitrust and Patent Law.  

3.  Amy Gallegos and Julia Kim Hirata published an expert analysis on Law360 titled Cooperating With Competitors In The Wake Of Qualcomm.  The article concludes with five takeaways for attorneys advising clients on how to avoid liability for refusing to deal.

4.  For recent expressions of my own views, see here and here.

Wang on China's New Preliminary Injunction Provisions

Zhengzhi Wang has published an article titled A New System for Preliminary Injunctions in the Intellectual Property Law in the May 2019 issue of the German law journal GRUR Int. (pp. 463-67).  The article (which is in English, not German) provides a detailed overview of the "Provisions of the Supreme People's Court Concerning Application of Law Regarding Behavior Preservation in the Examination of Intellectual Property Dispute."  As the author explains, the concept of "behavior preservation" is "similar to that of a preliminary injunction in a common law system," in that "a party is specifically asking the court to require or refrain an averse party from engaging in certain activities."  The article includes a translation of and commentary on each of the 21 articles of the Provisions.  Article 7 lists the factors courts should take into account in deciding whether to grant a preliminary injunction (factual and legal basis, irreparable harm, balancing, public interest), and article 10 goes into more specifics on the meaning of irreparable harm.   Article 11 discusses security, and articles 16 and 18 the consequences of a wrongly issued preliminary injunction.  The provisions went into effect on January 1.

For previous discussion on this blog, see this post and the accompanying comment by Mark Cohen.