Thursday, February 25, 2016

New Book on the Unitary Patent

My university's library recently received a copy of Transitions in European Patent Law:  Influences of the Unitary Patent Package (Rosa Maria Ballardini, Marcus Norrgård & Niklas Bruun eds., Kluwer Law International 2015).  Part IV is titled Enforcement and Procedural European Patent Law, and includes chapters by Kelli Larson titled Enforcement:  Legal Implications of the European and Unitary Patent Systems for Non-practicing Entity Patent Enforcement in Europe, and by Marcus Norrgård and Alicia Nylund titled The Requirements for Preliminary Injunctions in the Unified Patent Court.  Ms. Larson's chapter provides a interesting discussion of factors that cut both for and against the prediction that the new system will make Europe more NPE-friendly, while the chapter by Professor Norrgård and Ms. Nylund contrasts the UK approach to preliminary injunctions (involving something of a balancing inquiry) with the German approach (involving more of a prediction as to likelihood of harm). Norrgård and Nylund note that the relevant legal documents relating to the UPC do not clearly specify which approach the UPC should take toward preliminary injunctions, and they argue in favor of an approach (patterned after frameworks developed by Professor John Leubsdorf and Judge Richard Posner) that they refer to as "inverse sequential," which would begin "by weighing the interests of the parties, which in turn would define the standard of proof required.  In short, the graver the consequences for the plaintiff compared with the defendant's consequences, the lower the threshold for a preliminary injunction, and the other way around:  the greater the harm to the defendant (compared to the plaintiff's), the higher the threshold."  Interesting reading.

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