Thursday, February 9, 2023

Molina on Protective Letters in Spain

I just received a copy of Judge Florencio Molina López's new book, El escrito preventivo frente a las medidas cautelares inaudita parte (Bosch Mercantil 2022) (in English, the title can be translated as "The protective letter as a defense mechanism against ex parte preliminary injunctions").  The subject of protective letters is one I discuss, briefly, in my book and have occasionally touched on in this blog.  For example, I noted (here) a 2017 European Commission Communication that defined a protective letter as "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," and which stated that such letters "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."  My understanding is that protective letters are used most extensively in Germany (where they are called Schutzschriften), but that other countries including Spain now make use of them as well.  Anyway, I met Judge Molina at a conference at the University of Nevada-Las Vegas in 2018, at which he and Germany's Judge Anne-Kristin Fricke both spoke on protective letters, and then in 2019 I spent some time with both judges during an extended stay in Europe (see, e.g., here).

Below is the book description (in my very unofficial, but I hope reasonably accurate, translation from the Spanish), and here is a link to the publisher's webpage:


            This work has as its objective the legal analysis of the procedural instrument known as the protective letter:  its German origin and a brief comparative study, the application and responses provided by our commercial courts following the legal recognition in Spain with article 132 of the Law No. 24/2015 of July 24, 2015, on Patents, as well as the various problems that the interpretation and application of the same has produced thus far in our country.  In addition, it compares and analyzes the judgments rendered within the context of the Barcelona Commercial Court's Fast Action Protocol for the Mobile World Congress, as well as other decisions which have applied this procedural form beyond the legal and traditional scope of patents.



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