The (Cross) Border Is Closed: ECJ Rules on Patent Injunctions

Europe, while often considered one territory from a commercial viewpoint, cannot be viewed so simply from the IP perspective. Patents (and other IP rights) are national rights. This is the case even for European patents, which provide a common prosecution procedure and on grant produce a bundle of national patents that each exist separately under the law of the relevant European country. The result of this is that patents in Europe must, prima facie, be enforced on a country-by-country basis. Understandably, some patentees would prefer to be able to enforce their patents across Europe with just one proceeding.

For many years now, some courts, led by the Dutch, have been trying to find a way of providing cross-border relief in patent actions. However, whether such measures are permissible—and if so, under what circumstances—has long been clouded in uncertainty. The decisions of the national courts have varied from country to country and even from court to court.