Thursday, October 28, 2021

Two Recent Articles on Injunctions

1.  Burton Ong and Marissa Chok have published Patent injunctions, standard essential patents and patents essential to de facto standards: European, German and Korean perspectives, 43 EIPR 417-31 (2021).  Here is the abstract:

Patent injunctions against unlicensed defendants who implement a patented technology standard may produce exclusionary effects that are anti-competitive. Should it make a difference whether the patent in question (1) involves a technology standard developed under the auspices of a standard-setting organisation (i.e. a standard essential patent or SEP); or (2) covers an invention that is incorporated into technology standard without going through this standard-setting process (i.e. a patent that is essential to a de facto standard or "de facto essential patent")? The potential anti-competitive effects are the same in both categories of patents, yet the legal frameworks of jurisdictions that have considered these legal issues appear to differentiate between them. This article examines the validity of distinguishing between these two groups of patented standards, using examples from various jurisdictions to illustrate the bifurcated approach that has been taken towards placing limitations on the patent holder’s freedom to seek injunctive relief. 

2.  Peicheng Wu and Charlie Xiao-chuan Weng have published Old wine in a new bottle? Assessing the injunction remedy for intellectual property disputes in China, 11 Queen Mary Intellectual Property Law Journal 295-313 (2021).  Here is the abstract:

The landmark eBay case in the US has noticeably influenced Chinese judicial practices concerning intellectual property injunctions. The injunctive relief in intellectual property infringement cases in China has witnessed a change from a traditional automatic-granting approach to a more equitable approach. However, there are still some issues, namely: the standards of awarding injunctive relief in intellectual property cases are unclear; the civil law tradition and procedure can create issues when applying for injunctions; and the scope of the injunction could be disproportionate in certain cases. In order to address these concerns, China needs to publish judicial interpretations to clarify that the eBay test can be applied to both preliminary injunctions and permanent injunctions. China should further polish up its civil procedure legislation to enable a permanent injunction to be effective immediately, even at the first instance, and to allow the parties to an intellectual property contract to have agreements on conditions of applying for injunctive relief. Additionally, Chinese courts should adopt a proportionate method in determining cases regarding intellectual property injunctions. 

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