General strategies against threatened preliminary injunctions

This paper deals with preliminary injunctions (PIs) based on patents with a view towards European procedures. Also discussed are precautionary measures that a potential defendant in PI proceedings may take in order to avoid an injunction.

Background of preliminary injunctions

A patent proprietor who identifies an act infringing one or more of his patents, may have an interest that the infringement is stopped immediately. Such a patent proprietor will therefore seek immediate injunctive relief. The injunctive relief may be permanent, but permanent injunctive relief is typically only granted after lengthy court proceedings on the merits of a case. In contrast, courts may, upon application by the patent proprietor, order injunctive relief in the form of a provisional measure. In the European Union, provisional measures are mandatorily available in all member states.

Provisional measures are regularly granted in preliminary injunction procedures. There are two procedural possibilities, i.e. either the defendant is heard by the court before a decision on the application for a PI is taken (inter partes procedure), or, in case any delay would cause irreparable harm to the patent proprietor, the PI may even be granted without hearing the defendant (ex parte procedure).

Naturally, when a defendant is injuncted and has to stop the act in question immediately, this may constitute a significant threat to his business. From the defendant’s perspective, all reasonable steps against preliminary injunctions should be taken, and should be taken in due course. Some recommendations are given below.