Of the nearly dozen inter partes preliminary injunctions (PIs) that have been granted by the Unified Patent Court (UPC) in the first fifteen months of its operation, what have we learnt?
Perhaps the first point that will be apparent is that more of these decisions have gone against the patent proprietor than for them (although a more even balance is provided if the ex parte decisions are included in the count). In some cases the PI has not been granted for particular technical reasons, such as the failure to correctly withdraw the opt-out of the patent in suit or lack of urgent action in a national court before the UPC opened.
In most other cases, success has turned on substantive factors, most notably infringement or validity of the patent. This is important because, to take the UK as an example, success rates might look similar for PIs in the English Patents Court and UPC at present. The reasoning behind these decisions has been very different, however: the UPC places most emphasis on the merits of the case, whereas in the UK it is the commercial factors that matter – the likelihood of irreparable harm to the parties.
Is the UPC's approach to these factors now fixed, and where do considerations of proportionality factor in?
With seven of the local divisions having made PI decisions, what can we also say about procedural practice, such as the speed at which PI decisions are being made, and the approach to giving security in the event that a decision is later revoked?
This year's Pharma Forum, taking place in our London office on Wednesday 11 September, is dedicated to the subject of PIs and we will be discussing all these questions about UPC practice. We'll also consider key national PI developments in the UK, German and Ireland, and the impact of relevant rulings of the Court of Justice of the European Union.
Register your place now.
