In Law360, IP Litigators Examine Unified Patent Court Introducing Possibility of Pan-European Preliminary Injunctive Relief

In The News
July 26, 2023

In a Law360 article, IP litigators analyzed a notable remedy provided by the Unified Patent Court (UPC), which recently began accepting cases, the ability to obtain a broad preliminary injunction across all seventeen European member states. 

The authors note that while preliminary injunctions are already allowed in some European national courts, such motions have varying requirements that make large-scale filings difficult. As a pan-European forum, the threat of a UPC preliminary injunction is significantly more concerning, especially because the UPC Rules of Procedure permit a party to obtain a preliminary injunction ex parte upon a showing of irreparable harm or where there is a demonstrable risk of evidence being destroyed. 

A protective letter, which allows a party who believes it may face a UPC action to proactively identify the reasons why it does not infringe or the patent is invalid, may be an effective way to proactively combat an ex parte preliminary injunction. While a protective letter can be a cost-effective antidote to an ex parte preliminary injunction, the decision to file such a letter is not without its own set of risks and challenges. The authors explain that adapting to this new era of European patent law is essential both for plaintiffs seeking to enforce their patent rights and for defendants seeking to protect their product sales.

The article was authored by IP litigation partner and practice chair Steven Pepe, IP litigation counsel Matthew Shapiro and IP litigation associate Brian Lebow.