Thursday, October 10, 2019

News on Injunctions, Part 1

1.  Several commentators recently have published posts on recent events at which a topic of discussion was whether the German government will amend section 139 of its Patent Law to require courts to consider proportionality before issuing injunctions--or whether, instead, it will undertake some more limited procedural reforms (e.g., relating to stays pending invalidity proceedings), or not address the injunction issue at all.  JUVE Patent reports that whatever is forthcoming "will likely disappoint many experts and not include the major changes to the automatic injunction that have been called for by the German automotive and telecommunications industries."  Léon Dijkman published a post on IPKat titled Industry takes stance on automatic patent injunctions as German Ministry of Justice considers reform of the patent law, while on FOSS Patents Florian Mueller published a post titled "Press release: IoT Innovators send strong message in support for reform of Germany's outdated 'automatic injunctions' law (ACT | The App Association)."

2.  Simon Holzer published a post on Kluwer titled Irreparable Harm Discussion Awakens from Its Slumber in Switzerland, discussing two recent Swiss decisions discussing how irreparable harm in connection with requests for preliminary injunctions.  Mr. Holzer provides links to the relevant decisions.  I have not read them yet myself, but according to his analysis in the first of the two cases the Swiss Federal Supreme Court concluded (1) that irreparable harm could be based on the risk that, absent a preliminary injunction, other firms will be tempted to enter the market, and (2) that it was not arbitrary to assume that the Swiss patent owner would be harmed, where the authorized Swiss distributor is a related company (both firms being subsidiaries of the same larger entity).  The other decision, by the Swiss Federal Patent Court, arguably takes a narrower view on the second issue.

Update (10-14-2019):   Kilian  Schärli also has a write-up  of these two cases on EPLaw.

3.  In the U.S., Judge Mazzant (E.D. Tex.) denied a permanent injunction to Texas Advanced Optoelectronic Solutions, Inc. in its long-fought litigation against Renesas Electronics America. (Discussion on Bloomberg here; link to the opinion here.) Although the jury found the latter to have willfully infringed, the court was convinced that the defendant no longer sells any infringing products in the U.S., and thus that there was no prospect of irreparable harm.  In addition, the court concluded that there was no causal nexus between the infringement and the plaintiff's potential loss of a sale to Apple in 2008; that there was an adequate remedy at law; and that balance of hardships and public interest were neutral.  For previous discussion on this blog of this complex case, which resulted in substantial monetary awards for trade secret misappropriation and other claims, see here, here, and here.

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