The Proportionality Test in European Patent Law - by Léon Dijkman (Paperback)

Book Synopsis

Does a European patent always entitle its holder to a permanent injunction?

This question has sparked vigorous debate in past years but so far remains unresolved. This open access book presents a detailed, practical, and comprehensive test to determine when injunctive relief should be limited on proportionality grounds.

The book's 3 parts guide readers from proportionality's normative foundations to its practical applications. Part I argues that, contrary to conventional wisdom, proportionality is not an open-ended balancing test but rather applies the principle of commensurate scope at the remedies stage. Part II offers an in-depth analysis of situations where a permanent injunction risks upsetting that principle. It draws on a unique qualitative study of all US District Court decisions between 2006 and 2020 granting or denying a permanent injunction in patent cases to stake out circumstances where an injunction might have disproportionate consequences. Part III grounds the inquiry in EU law and proposes a proportionality test along three elements: overreach, abuse, and conflicts with third-party rights.

The book thus provides a distinctly European response to a global problem. The book is an invaluable resource for practitioners, clerks, and scholars looking not only for the normative, empirical, and legal basis of proportionality in European patent law, but also for guidance on its real-world operation.

The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

Review Quotes

"Learned and pragmatic. The proposals advanced by the author to find the appropriate meaning and place for the proportionality defence in infringement actions go a long way to cure a number of dysfunctionalities which currently affect the patent system." --Marco Ricolfi, Professor of Commercial Law at the University of Turin, Italy

"In a world of digitalized industrial interdependency the principle of proportionality in European patent law matters, more than ever. The role of the principle has been much debated. A reader of this book will, after absorbing its elegant analysis, come to at least this conclusion. This is the foundational treatment for which we have been waiting." --Peter Drahos, Professor, European University Institute, Italy

"This insightful and thought-provoking book is essential reading for lawyers, judges, and scholars as they undertake to integrate the proportionality concept into European patent litigation." --Thomas F Cotter, Briggs and Morgan Professor of Law at the University of Minnesota Law School, USA

"The book offers a modern and compelling way of looking at proportionality for injunctions in European patent law. It is a must-have for every serious patent library." --Martin Husovec, Associate Professor of Law at London School of Economics, UK

"On the basis of a thorough analysis of the US 'four-factor test' and of EU IP enforcement law, Léon Dijkman presents a theory of 'bounded proportionality', governing the grant of injunctive relief in European patent law." --Ansgar Ohly, Chair for Civil Law, Intellectual Property and Competition Law at the University of Munich, Germany

About the Author