Lost in Translation? Injunctions and Patent Enforcement in a Transatlantic Perspective
Abstract
As the European Directive on the Enforcement of Intellectual Property Rights (IPRED) marked the twentieth anniversary of its adoption, renewed calls have emerged for its revision, aimed at fostering a more effective application of the principle of proportionality in patent enforcement. Proponents of reform argue that injunctive relief continues to be granted in an overly automatic manner and should therefore be subject to greater restraint. To this end, it has been suggested that valuable guidance may be drawn from the U.S. legal landscape and, in particular, from the framework articulated by the U.S. Supreme Court in eBay v. MercExchange. Against this background, the paper critically examines these reform proposals, arguing that they appear to rest on the same arguments that underpinned the highly controversial regulatory proposal on standard essential patents (SEPs), and questioning the purported alignment between the European and the U.S. approaches to patent enforcement.