The Proportionality Test in European Patent Law: Patent Injunctions Before EU Courts and the UPC

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Léon Dijkman (Rotterdam University, the Netherlands)

The Proportionality Test in European Patent Law

Patent Injunctions Before EU Courts and the UPC

Léon Dijkman (Rotterdam University, the Netherlands)

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English

Hart Publishing
04 December 2023

Patents law

Does a European patent always entitle its holder to a permanent injunction?

This question has sparked vigorous debate in past years but so far remains unresolved. This open access book presents a detailed, practical, and comprehensive test to determine when injunctive relief should be limited on proportionality grounds.

The book's 3 parts guide readers from proportionality's normative foundations to its practical applications. Part I argues that, contrary to conventional wisdom, proportionality is not an open-ended balancing test but rather applies the principle of commensurate scope at the remedies stage. Part II offers an in-depth analysis of situations where a permanent injunction risks upsetting that principle. It draws on a unique qualitative study of all US District Court decisions between 2006 and 2020 granting or denying a permanent injunction in patent cases to stake out circumstances where an injunction might have disproportionate consequences. Part III grounds the inquiry in EU law and proposes a proportionality test along three elements: overreach, abuse, and conflicts with third-party rights.

The book thus provides a distinctly European response to a global problem. The book is an invaluable resource for practitioners, clerks, and scholars looking not only for the normative, empirical, and legal basis of proportionality in European patent law, but also for guidance on its real-world operation.

The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

By: Léon Dijkman (Rotterdam University the Netherlands)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm,
ISBN: 9781509973620
ISBN 10: 1509973621
Pages: 304
Publication Date: 04 December 2023
Audience: College/higher education , Professional and scholarly , Primary , Undergraduate
Format: Hardback
Publisher's Status: Active

Léon Dijkman is Assistant Professor at Erasmus School of Law, Rotterdam University, and Senior Associate at Hoyng Rokh Monegier, the Netherlands.

Reviews for The Proportionality Test in European Patent Law: Patent Injunctions Before EU Courts and the UPC

Learned and pragmatic. The proposals advanced by the author to find the appropriate meaning and place for the proportionality defence in infringement actions go a long way to cure a number of dysfunctionalities which currently affect the patent system. * Marco Ricolfi, Professor of Commercial Law at the University of Turin, Italy *