Injunctions: Still the right remedy? Mark Ridgway, Partner, Allen & Overy LLP Fordham 2018

Commission review of the IP Enforcement Directive …a comprehensive performance evaluation of IPRED. The results show that the directive has led to the creation of a common legal framework, where the same set of tools is applied in civil courts across the EU, thereby generally ensuring a high level of protection in the internal market. “ ” However, the evaluation also found that there are differences in the way certain IPRED provisions (for instance on injunctions, damages and legal costs) are implemented and applied in practice. “ ” < Com (2017) 707 final >

Commission Guidance – issues covered Injunctions and interim measures (×5) Injunctions involving intermediaries (×3) Damages (×3) Legal costs & expenses (×2) General / misc points (×10) Rights to information and/or evidence (×5)

Guidance on injunctions Injunctions… should be capable of being effective, but they should not go beyond what is necessary and proportionate in the circumstances… . It can be sufficient that they make the infringing acts in question difficult or seriously discourage them, without necessarily leading to the complete cessation thereof. However, in view of the CJEU case law, the addressee of the injunction cannot be required to make ‘unbearable sacrifices’. Measures imposed need to be sufficiently precise and effective, without requiring that a measure must guarantee that an end is put to the infringement. Compliance with the fundamental rights of all parties involved should be ensured in this regard, including those of third parties which may be affected by the measures taken to comply with the injunction such as internet users. “ ”

Where might the impact be? 1 Generic pharmaceutical companies vs innovators? 2 Disputes between life sciences innovators (eg patents on therapeutics, therapeutic targets, diagnostics, platform technologies)? 3 Second medical use patents? 4 SMEs (note other aspects of guidance relevant to SMEs)? 5 Others?