1.3.3 Preliminary injunction
Different jurisdictions offer various forms of provisional measures in patent disputes, including freezing assets, search and seizure orders, and temporary restraining orders. A frequently requested type of provisional measure is a preliminary injunction, whose availability and utilization will vary based on the jurisdiction and the individual case circumstances.
The factors considered by courts in weighing the grant of a preliminary injunction differ among jurisdictions.37 These factors can consist of variations of the following components: the establishment of a prima facie case or likelihood of success on the merits; the balance of convenience; whether damages are an adequate remedy or specific legal interest for preliminary relief; the potential for irreparable or imminent harm to either party if the injunction is granted or denied; and urgency. Some jurisdictions will also assess the impact of the injunction on the public interest. Most jurisdictions require the applicant to post a security deposit (also known as an undertaking for damages) to compensate the enjoined party if the injunction is later reversed or lifted.38 While ex parte preliminary relief may be granted in patent cases, it is typically rare due to the often significant potential consequences for the defendant to be considered in balancing the right of the defendant to be heard, as well as the technical and legal complexity of these disputes, which often require input from the defendant.39
In some jurisdictions, the courts having jurisdiction over the merits exercise jurisdiction over preliminary injunction trials.40 In others, actions for preliminary relief take the form of a separate and independent action from the action for permanent relief. As such, the action for preliminary relief can be filed with a court other than the court with jurisdiction over the permanent relief, and a ruling on permanent relief does not automatically affect a prior ruling on preliminary relief. Any preliminary injunction will therefore need to be set aside by a court within the framework of the proceedings for preliminary relief.41
Adjudicating an application for a preliminary injunction in patent cases can be challenging. Preliminary injunction proceedings frequently involve urgency and must take into account parties’ need to carry on with their business in the meantime; whereas establishing a strong likelihood of success on the merits often requires a thorough examination of the evidence, including all substantive and technical issues that will ultimately be presented at trial.