Preliminary Injunction Research Articles

Under double shadows: how U.S.–China trade relations and path dependence shape China's IP preliminary injunction system

ABSTRACT The current IP preliminary injunction system in China is an awkward mixture that has developed under two shadows: U.S.–China trade relations, and path dependence. This article traces the historical moments when China amended its rules on IP preliminary injunctions. It finds that, while U.S.–China trade relations facilitated the transplantation of equitable standards into the regime, the basic procedural framework, rooted in the civil law tradition, remains largely intact. These double shadows have introduced pressing problems into the system. However, most of these issues can be attributed to China's retention of its basic procedural framework, which is shared with and originates from the property preservation system. Path dependence theory aptly explains this developmental trajectory and offers normative guidance for future reforms. It may not be feasible to conduct a full cost–benefit analysis on establishing a standalone framework for IP preliminary injunctions in China, which would represent a radical alteration of the system. However, the developmental-evolution model of path dependence theory can still provide valuable insights, even if the system currently exhibits a semi-strong form of path dependence. Chinese legislators could design future incremental reforms with path evolution in mind, aiming for a gradual recombination that ultimately pulls the IP preliminary injunction system out of its original procedural framework. Once sufficient incremental reforms have accumulated, decision-makers can seize critical junctures (such as future escalations in U.S.–China trade conflicts) as opportunities to establish a new, standalone framework for IP preliminary injunctions, thereby breaking the lock-in loop.

Evaluation of drug litigation against the Campinas municipal health system from 2017 to 2021

In Brazil, the judicialization of public health for access to medications has resulted in significant challenges to the management of public policies, especially at the municipal level. To evaluate the profile of drug litigations against the Campinas municipal health system from 2017 to 2021, this study analyzed the characteristics of litigants, medicine dispensation, and the timing of court decisions. A quantitative, analytical, and comparative cross-sectional study was conducted using data on the dispensation of 506 types of medications and 493 court cases. The analysis included sociodemographic, procedural, medical–sanitary, and pharmaceutical assistance management variables. The time of court decisions was assessed using the Kruskal‒Wallis test complemented by the Dunn test. The plaintiffs were predominantly adults, females, and self-declared students, and some cases involved nonresidents. Most of the lawsuits were represented by private lawyers, gratuitousness of justice and with decisions favorable to the plaintiff. However, only 43% of the patients obtained a preliminary injunction or early tutelage. The median time needed for a court decision from the date of case filing was 12 days until the granting of a preliminary injunction or early tutelage and 6.5 months until a judgment or dismissal without a decision on the merits. Approximately 32.4% of the medications dispensed by the judicial pharmacy already belonged to the list of the Brazil’s Unified Health System in 2020; 46.3% were prescribed by their generic name; 75.5% had therapeutic equivalents, and 94.9% had marketing authorization from the Brazilian National Health Surveillance Agency. Judicialization in Campinas is an alternative way of accessing medications, but it is time-consuming and benefits only a small portion of the population (0.068%). The characteristics of the plaintiffs and judicialized medicines highlight the need to review health policies to promote equitable and efficient access to essential treatments for the population.

The UPC CoA’s first substantive order—central issues clarified, but on a high level

Abstract In its decision, the UPC Court of Appeal confirms the application of key principles of patent claim interpretation for unitary patents. With regard to the inventive step, a tentative path is chosen that does not clearly follow the problem–solution approach of the European Patent Office and instead, comprehensively takes the state of the art into account at the outset. The standard for the necessary probability of infringement and validity is set at a preponderance of probability (sufficient degree of certainty, ie more likely than not). Furthermore, the temporal and factual necessity of the injunction is also important in determining whether a preliminary injunction should be ordered. Ultimately, the granting of injunctive relief hinges on an overall weighing of the interests.

Understand potential implications of recent NIL ruling

Much about the legal aspects of the name, image, and likeness world changed in February when the U.S. District Court of the Eastern District of Tennessee granted a request by the Tennessee and Virginia attorneys general for a preliminary injunction enjoining the NCAA from enforcing certain of its NIL rules.

Fingolimod—(no) injunction before patent grant

Abstract This article analyses the position of European courts on the availability of preliminary injunctions on the basis of a patent application, reviewing several national decisions in the fingolimod litigation. The decisions handed down by the Düsseldorf Regional Court, the Tribunal Judiciaire de Paris, the Danish Maritime and Commercial Court, the District Court of The Hague and the Barcelona Commercial Court show that the courts, with limited exceptions, reject provisional legal protection on the basis of a mere patent application on the grounds of absence of legal certainty. The analysis identifies four (minimum) prerequisites that must be fulfilled for the courts to consider the possibility of issuing an injunction before a patent is granted.

<span>The Department that Cried Wolf: Tenth Circuit Vacates Preliminary Injunction in Absence of Likely Injury . . .</span>

<span>The Department that Cried Wolf: Tenth Circuit Vacates Preliminary Injunction in Absence of Likely Injury . . .</span>

Does current legislation provide for adequate compensation in cases of unjustified preliminary injunctions? Originator–generic conflicts in the context of patent infringement proceedings

Abstract In Germany, preliminary injunctions are frequently granted for pharmaceutical patents. If a granted preliminary injunction later proves to be unjustified, under section 945 ZPO (German Code of Civil Procedure), the defendant generic company can claim damages on a strict liability basis. However, attempts to enforce such claims are rare, and, even when they are enforced, originators have little to fear because their profits routinely exceed the losses of the generic companies by a significant margin. Yet, delayed market entry by generic companies not only harms generic companies themselves but also leads to the unjustifiable maintenance of high prices for patent-protected medicines. The resulting higher costs place a burden on the already strained healthcare system as well as on the health insurance companies. Section 945 ZPO does not take account of these higher costs, raising the question of the need for further legal bases for claims.

Urgency in preliminary injunctions in patent law (with a discussion of Solarzelle II and Bortezomib II)

Urgency in preliminary injunctions in patent law (with a discussion of Solarzelle II and Bortezomib II)

Antisuit Injunctions in Chinese Courts

Abstract The increasingly intensified competition arose among national courts over their judicial authority to resolve standard-essential patents (SEPs) disputes. This competition drove courts and litigants to resort to antisuit injunctions (ASIs) more frequently. However, ASIs Chinese courts issued in SEP-related cases raised concerns in foreign countries. Chinese ASIs’ legal basis has evolved through decades of legislation regarding injunctions, including compulsory maritime orders, IPR preliminary injunctions, and general rules of act preservation, despite containing inherent defects that troubled the subsequent antisuit practice. Likewise, Chinese antisuit practice did not emerge overnight but took years to develop, growing from a mere sprinkle in maritime litigations to a respectable drizzle in SEP-related actions. It encompasses orders to prevent foreign collateral proceedings, the injunction to inhibit foreign antisuit orders, and orders to halt foreign substantive proceedings. Chinese antisuit practice is at its nascence and exhibits striking features in SEP cases. However, closely examining Chinese antisuit decisions in SEP cases reveals that so-called Chinese worldwide ASIs were justifiable and legitimate, in terms of substantive conditions and actual operation, even by the EU and US standards. Nevertheless, China needs to reform the relevant laws regarding antisuit relief and refine its antisuit practice in various aspects to fend off due process and other equitable concerns. Only through international coordination can national courts efficaciously tackle the proliferation of antisuit relief in SEP cases.

Consider implications of ruling that deemed gifted student eligible for testing modifications

A New York federal court granted a preliminary injunction to a gifted student with learning disabilities and attention deficit hyperactivity disorder, holding that the National Board of Medical Examiners had to provide the student with double time for the Step 1 U.S. Medical Licensing Examination. The court rejected the NBME's argument that the student wasn’t an individual with a disability due to his academic success. (Sampson v. Nat’l Bd. of Med. Exam’rs, 22‐CV‐05120 (E.D.N.Y. 2022).

Analysis of the Six Preliminary Injunctions Granted in Legal Challenges to COVID-19 Vaccine Mandates for Federal Contractors

Analysis of the Six Preliminary Injunctions Granted in Legal Challenges to COVID-19 Vaccine Mandates for Federal Contractors

Student with disabilities eligible for reasonable modifications from NBME

A New York federal court granted a preliminary injunction to a gifted student with learning disabilities and attention deficit hyperactivity disorder, holding that the National Board of Medical Examiners (NBME) had to provide the student with double time for the Step 1 United States Medical Licensing Examination (USMLE). The court rejected NBME's argument that the student was not an individual with a disability due to his academic success. Sampson v. Nat'l Bd. of Med. Exam'rs, 22‐CV‐05120 (E.D.N.Y. 2022).

Certain procedural aspects of the institute of interim measures in protection of copyright and related rights

The article analyses the peculiarities of the institute of interim measures and preliminary interim measures provided by the section 144.1 of the Civil Procedural Code of the Russian Federation in the part of their taking by the court. The authors draw attention to the temporary nature of interim measures, which involves the return of the parties to the initial position in the event that the claims are recognized by the court as unfounded. However, difficulties of a technical nature arise in this part when the court takes preliminary injunctive relief under section 144.1 of the Code of Civil Procedure of the Russian Federation in the form of obliging the Federal Service for Supervision of Communications, Information Technology and Mass Communications and other persons to stop creating technical conditions for the placement, distribution and other use of the disputed musical work. As a rule, after the filing of an application for interim measures by the applicant claiming that his rights have been violated by placing an object of copyright and related rights on the Internet, either the defendant himself or the Federal Service for Supervision of Communications, Information Technology and Mass Media essentially removes the corresponding work or a link to it. After filing an action to prohibit the creation of technical conditions for the placement, distribution and other use of the disputed work, in accordance with the procedure stipulated by part 5 section 144.1 of the Civil procedural code of the Russian Federation for its consideration on the merits sometimes requires the expertise to establish the identity of the work posted on the Internet by the defendant and the work in respect of which the plaintiff claims the exclusive rights. This is particularly relevant when disputes arise regarding the posting of phonograms, since multiple phonograms are allowed and the court needs to establish the identity of the phonogram claimed by the plaintiff and the phonogram posted by the defendant and in respect of which the court has taken preliminary injunctions. Even the mere possibility for the defendant to re-post the phonogram on its website after the plaintiff’s claims have been found unfounded does not undermine the fact that the restoration of the defendant's rights to post the phonogram on its website is not through the lifting of provisional measures to resume access to the previously posted work, but through its new posting by the defendant. The foregoing contradicts the provisional nature of the interim measures.

가처분 발령에서 공익(公益) 요건에 관한 검토

In order to get preliminary injunctions in Korea, plaintiffs should show merits of his or her own right and the necessity of injunctive relief. The merits of right correspond to ‘likelihood of success’ requirement of the United States, and the necessities of injunctive relief to both of ‘irreparable harm’ and ‘balancing test’.
 In comparing the requirements for preliminary injunction between Korea and U.S., a conspicuous characteristic is that U.S. Supreme Court holds that ‘public interest’ is one of four requirements for preliminary injunction while Korean Supreme Court does not.
 In this article, I reviewed what public interest means in the context of preliminary injunctions. When (or in which type of cases) does ‘public interest’ appear as a requirement for preliminary injunctions? How different is the intensity of public interest factor according to cases? What kind of impact exists when a party is a government entity? Does the cause of action or requested injunctive relief have influence on the public interest of the case? Above are the topics that this article has dealt.

Lessons for International Small and Medium-Sized Enterprises from Counterfeiting Civil Litigations in China

AbstractThis study aims to assess the effect of the 2013 trademark law revision (2013 law revision) on judicial remedies in China. The 2013 law revision increased the remedies Chinese courts can grant to plaintiffs, including small and medium enterprise (SME) plaintiffs, thus leading to higher remedies granted to plaintiffs compared to the past years in prevailing cases. This study finds that right after the law revision, the average amount of judicial remedies granted to plaintiffs increased temporarily. Meanwhile, the detailed judicial reasonings, foreign plaintiffs, and company defendants have stronger positive effects than product types and the year of decisions on the amount of monetary relief. These findings suggest that certain factors in cases may increase the remedies in trademark civil litigation. Therefore, SME plaintiffs should pay attention to core factors for litigation strategies, including preliminary injunctions, choice of defendant, choice of venue, and evidence in remedy collection.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

USA: Preliminary Injunction on basis of Computer Fraud and Abuse Act

USA: Preliminary Injunction on basis of Computer Fraud and Abuse Act

Can the English Patents Court award a cross-border preliminary injunction?

Can the English Patents Court award a cross-border preliminary injunction?

Judicialization of health care in the Western Amazon: collective decisions of the jurisdictional court of justice in the State of Acre, Brazil

Introduction: the judicialization of health is an alternative to the health services in Brazil, despite criticism of judicial decisions and control of public health policy. The large number of actions that demand health services is a health problem that characterizes the political, social, ethical, legal, and health systems of the Public Health Policy. Objective: to analyze the judicialization of health care in the Acre State, Brazil, from 2010 to 2016. Methods: it is a documentary and cross-sectional study of collegiate decisions, with final judgments, in the period from 2010 to 2016, issued by the Court of Justice of the State of Acre, Results: all proposed actions were Writ of Mandamus. The use of preliminary injunction was the most common strategy (n = 34; 94.44%). One third of the respondents were not questioned by the State of Acre (n = 9; 25%) as decisions of the Court of Justice on health concern medicines, examinations, and procedures, in these cases, it only manages interests, with no litigation per se. (n = 25, 69.44%). Men and women demanded in the same proportion, all of them characterized by living in poverty (n = 28; 77.78%). Conclusion: the collective health decisions handed down by the State Court of Justice Acre, Brazil, guarantee access to health goods and services to the claimants, with emphasis on preliminary injunctions and grounds based on the principle of human dignity, physical integrity and life, and on medical prescriptions in each specific case and, in a third of the cases, serving as a mere administration of interests.

Market entrance, patents, and preliminary injunctions: a model of pharmaceutical patent litigation

Market entrance, patents, and preliminary injunctions: a model of pharmaceutical patent litigation