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Between exclusivity and flexibility: proportionality and permanent injunctions in German, English and US patent disputes
Stockholm University, Faculty of Law, Department of Law. University of Copenhagen, Denmark.
Number of Authors: 12019 (English)In: Journal of intellectual property law and practice, ISSN 1747-1532, Vol. 14, no 12, p. 942-948Article in journal (Refereed) Published
Abstract [en]

Patent law aims at incentivizing innovations and promoting social welfare. While the first objective is usually associated with a strong monopoly, there is a belief that social welfare increases with more open access to patented technologies. When these objectives come into conflict with each other, procedural law allows the resolution of this conflict via the principle of proportionality by weighing various rights and interests in the course of enforcement.

However, the application of this principle varies between countries. This article discusses such differences in patent disputes concerned with applications for permanent injunctions. Scrutinizing German, English and US legal practice, it analyses proportionality as a maxim that promotes the efficiency of the patent system.

We argue for a wider application of proportionality as a tool which enables the courts to adjust patent exclusivity to the factual circumstances of the case and to the objectives of patent protection. We also propose a way in which proportionality may become more pronounced in European patent enforcement.

Place, publisher, year, edition, pages
2019. Vol. 14, no 12, p. 942-948
National Category
Law
Identifiers
URN: urn:nbn:se:su:diva-178710DOI: 10.1093/jiplp/jpz135ISI: 000504922700013OAI: oai:DiVA.org:su-178710DiVA, id: diva2:1391860
Available from: 2020-02-05 Created: 2020-02-05 Last updated: 2020-02-05Bibliographically approved

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