Realising the potential of proportionality in patent enforcement: A case for amending IPRED

Realising the potential of proportionality in patent enforcement: A case for amending IPRED

Journal article

1 online resource

The design of enforcement mechanisms, including remedies, determines the intensity of intellectual property protection. It holds true for patents as well. This article is an attempt to show how to ensure greater role for proportionality in patent enforcement, especially with respect to permanent injunctive relief. Firstly, it examines the growing recognition of proportionality for the enforcement of IP rights in both primary and secondary EU law. Secondly, the author analyses current patent laws and practice of respective national courts in patent infringement disputes. Thirdly, it looks at how proportionality is embraced by legal scholars. In this section the author also shows that there is emerging consensus around the need to apply injunctions in a more flexible manner. The cases of complex products and patent assertion entities are particularly evident examples where application of proportionality is needed. Fourthly, the author proposes revision of the directive on enforcement of intellectual property rights (IPRED) that would ensure that proportionality is properly considered by both national courts as well as the UPC, whose role as the main EU forum for resolving patent infringement disputes is likely to grow. The EU legislator has a number of possible options to ensure greater role for proportionality. These will be analyzed respectively and a proposal that is optimal—in this author’s opinion—shall be presented. Fifthly, the author will discuss implications of modernisation on the UPC. Finally, conclusions will be presented.

Crossref

European Intellectual Property Review, 0142-0461 ; E.I.P.R. 2025, 47(3), 134-149

[New York, NY] : Thomson Reuters, 2025.

eng

https://1.next.westlaw.com/Copyright

External Online Journals > European Intellectual Property Review