In a recent Insight, we argued that weakening injunctive relief through a reform of the Intellectual Property Rights Enforcement Directive (IPRED) is wrong. An argument against injunctive relief that has been kicking around the debate for decades is that injunctions are disproportionate and, therefore, there is IPR abuse built into the system. But these concerns are grossly overstated and the supporters of IPRED reforms are barking up the wrong tree. The harder question is not whether proportionality should be inserted into the system – it already is – but how courts should apply it with sufficient discipline, evidence and reasoning in the cases where the facts genuinely require it.
This Insight takes the next step. If the European system already gives courts tools to refuse, stay, or condition injunctions in exceptional cases, what happens if those tools are replaced by a broader policy of making injunctions harder – if not impossible – to obtain? What happens if injunctive relief is not available to patent holders? A real experiment has already taken place, in the United States, and it provides a strong warning against toying with injunctions.
The consequence of effectively abandoning injunctions is not merely that patentees receive less extensive relief. It is that the patent right itself begins to change in character. A patent that cannot ordinarily be enforced by excluding unauthorised use ceases, in practical terms, to operate as an exclusionary right and begins instead to resemble a right to court-assessed remuneration. This consequence may also raise concerns under Articles 17(2) and 52(1) of the Charter of Fundamental Rights, because a categorical or near-categorical refusal of injunctive relief would impair the essence of the patent right by converting it into a de facto compulsory licence. This ultimately comes down to whether the remedial regime still gives meaningful protection to the patentee’s right to exclude, while allowing courts to strike a fair and proportionate balance in the circumstances of each case.
These are lines that should not be crossed. Courts should be able to limit or tailor injunctions where the facts justify it, for example where relief would harm third parties, create disproportionate hardship, or reward abusive conduct. But proportionality should not become a general reason to let an infringer keep using a patented invention so long as it pays later. At that point, the patent no longer functions as a right to exclude. It becomes a claim for a court-set price after the technology has already been taken.
The European Patent Enforcement System Is Adjusting, Not Retreating
Let us begin by looking at the case law, which suggests that the courts are using existing jurisdictional and remedial tools to make enforcement more coherent, centralised and fact-sensitive. In BSH Hausgeräte GmbH v Electrolux AB, the CJEU did not create a free-standing right to global injunctions. It clarified how the jurisdiction of Member State courts over infringement under Article 4(1) interacts with the exclusive jurisdiction over patent validity under Article 24(4) of the Brussels I bis Regulation. Brussels I bis has long given the national courts of the Member State in which the defendant is domiciled jurisdiction to hear tort claims, including patent infringement claims, even where the alleged infringement occurred outside that State. This matters because the clarification concerns the powers of Member State courts, which are local or national courts by nature.
BSH confirmed that raising validity as a defence does not automatically prevent those courts from proceeding with infringement claims concerning foreign European patent designations, thereby removing what had often operated as an “automatic jurisdictional veto”. For patents granted or validated in another EU Member State, however, validity remains within the exclusive jurisdiction of the courts of the State of registration. For third-state patents, the Member State court may assess validity defensively and inter partes, provided its decision does not purport to revoke the patent or amend the foreign register.
Moreover, the recent Fujifilm v Kodak decision illustrates the point in the UPC context. Fujifilm asserted a classical European patent with German and UK designations before the UPC and sought relief extending to the UK, even though the UK is outside both the UPCA and the EU. The argument tracked BSH: the UPC, as a court common to its Contracting Member States, could adjudicate infringement of a non-UPC designation against German-domiciled defendants, while any assessment of UK validity would be inter partes only and would not revoke or amend the UK patent.
The UPC Court of Appeal accepted the jurisdictional premise, but it also distinguished jurisdiction from proof of infringement, attribution to each defendant, applicable foreign law and the treatment of validity objections. It identified mechanisms for managing validity objections, including withdrawal of affected claims, national revocation proceedings, stays, or conditional orders under Rule 118.2 of the UPC Rules of Procedure. The UPC also dismissed the infringement claims because the claimant had not proved the relevant acts against the named defendants.
The legally important point is the balance. The case does not mean that the UPC will grant an injunction with effects outside its territory whenever a claimant relies on a non-UPC patent designation. Rather, it suggests (arguably) that the UPC may, in an appropriate case, grant an injunction against a defendant within its jurisdiction even though the order may have effects beyond UPC territory. The claimant must still prove the alleged infringement in each relevant country. The decision therefore preserves the possibility of effective injunctive relief while requiring careful limits on when and how that relief may have cross-border effects.
IPRED Already Combines Effectiveness and Safeguards
Europe already has mechanisms capable of adjusting this remedial balance: Article 3(2) IPRED, Article 11 IPRED, Article 63 UPCA, national proportionality doctrines. The emerging case law is drawing a picture of a system setting the limits of centralised enforcement while retaining legal certainty over proportionality, proof and territorial competence. The better conclusion is therefore not that IPRED should be reopened to weaken injunctions, but that courts should be allowed to continue developing the existing framework case by case. This is especially important because IPRED does not merely tolerate injunctive relief; it requires Member States to make effective enforcement tools available where relief is justified. The CJEU has repeatedly described the Enforcement Directive as requiring effective remedies capable of preventing, terminating or rectifying infringements of existing IP rights, while preserving safeguards against abuse.
Bayer Pharma v Richter Gedeon confirms that balance. The CJEU held that the later invalidation of a patent does not, by itself, mean that an earlier application for provisional relief was unjustified for the purposes of Article 9(7) IPRED. The national court must assess all the circumstances, including the parties’ conduct and whether the right holder abused the provisional-measures procedure. That approach avoids deterring right holders from seeking interim protection merely because validity may later be challenged, while still preserving compensation mechanisms where interim relief was wrongly obtained. Phoenix Contact confirms the same principle from another direction. The CJEU held that Article 9(1) IPRED precludes national case law under which interim relief for patent infringement must, in principle, be refused unless the patent’s validity has already been confirmed in opposition or invalidity proceedings. That ruling is significant because it rejects categorical procedural barriers that would make interim relief practically unavailable, while leaving courts free to assess validity risk, urgency, proportionality and the facts of the case.
The broader CJEU case law has remained consistent with this. In L’Oréal v eBay, the Court confirmed that injunctions against intermediaries can be necessary to bring infringements to an end and prevent further infringements, but that such measures must remain effective, proportionate and dissuasive and must not create barriers to legitimate trade. UPC Telekabel Wien applies the same logic in the online context: blocking orders may be permissible, but only where they strike a fair balance between IP enforcement, lawful access to information and the intermediary’s freedom to conduct a business. That approach showcases that EU law treats prohibitory relief as a normal and central remedy once infringement is established, subject to proportionality and exceptional limits.
Proportionality Means Tailoring Relief, Not Disabling It
The UPC’s treatment of proportionality further points in the same direction. In Edwards Lifesciences v Meril, the UPC considered third-party and public-interest concerns arising from the removal of a heart-valve device from the market. Those concerns were not treated as irrelevant. But nor did they defeat injunctive relief as a matter of course. The more precise lesson is that proportionality may justify tailoring an injunction, including medically necessary exceptions or transitional measures, without displacing injunctions as the ordinary consequence of established infringement.
The German first-instance SEP cases provide a similar example. In Nokia v Oppo, Huawei v Amazon and VoiceAge EVS v Oppo, implementers relied on proportionality to resist injunctions, including on the basis that the asserted SEP concerned only one feature of a complex product. The Munich I Regional Court nevertheless granted injunctions, taking the view that, in the absence of exceptional circumstances, an implementer that is unwilling to obtain an available FRAND licence cannot rely on product complexity as a separate basis for avoiding injunctive relief.
In that context, the Huawei v ZTE framework performs the principal balancing function: the SEP holder must comply with its FRAND obligations, but an unwilling implementer cannot rely on product complexity alone to avoid an injunction. Dolby v Roku provides a later and more concrete illustration of this fact-sensitive approach. The Munich I Regional Court granted a preliminary injunction concerning an HEVC SEP only after considering a particular combination of factors: sufficiently secured validity, a substantiated record of FRAND negotiations and the implementer’s conduct, including its pursuit of anti-suit and anti-enforcement relief and its refusal to provide security, which the court regarded as inconsistent with genuine willingness to take a licence.
The US Warning: When Injunctions Lose Their Centrality
The European debate is especially important against the US backdrop. Since eBay v MercExchange, it has become increasingly difficult to obtain a permanent injunction in the US even after infringement has been established. The Supreme Court required courts to apply a four-factor equitable test, rejecting both a categorical rule in favour of injunctions and a categorical rule against them. That sounds moderate in theory. In practice, however, the ruling has produced a more differentiated remedial landscape in which injunctions remain more available to practising entities competing in the market, but are harder to obtain for licensing-based patentees, non-practising entities, universities and research institutions. Empirical work in the post-eBay literature suggests that US courts have developed a bifurcated remedial practice: practising patentees that compete with the infringer remain relatively likely to obtain injunctions, while non-practising or licensing-based patentees face a materially lower prospect of injunctive relief.
However, obtaining an injunction in the US is challenging even for practising entities. As a result, some patent holders do not seek injunctions in US courts and instead pursue injunctive relief in jurisdictions where such remedies are more readily available. Specifically, relative to the pre-eBay baseline, requests for permanent injunctions fell by 87.4 per cent for NPEs and 65 per cent for operating companies. Requests for preliminary injunctions also fell, by 48.4 per cent for NPEs and 53.2 per cent for operating companies.
By curtailing access to injunctive relief, this shift weakens patent holders’ bargaining position, makes exclusionary relief less certain and, in turn, diminishes the practical value of patent rights. The clearest lesson from eBay is that, once injunctions become exceptional rather than ordinary, the focus of the dispute shifts. The question is no longer simply whether the defendant is infringing a valid patent and should stop. It becomes whether money can be made to substitute for the right to exclude. Without a credible prospect of an injunction, licensing negotiations can become more difficult, and parties may get pushed towards litigation in disputes that might otherwise have been resolved through agreement.
That change matters because many patent holders do not practise the invention themselves. Their commercial route is licensing, not market exclusion. If the absence of direct competition makes injunctions harder to obtain, the system weakens precisely those entities whose inventions often reach the market only through licensing. When monetary compensation is the only effective remedy, infringement may become a rational economic decision. A firm may choose to use patented technology without taking a licence and pay for that use only if, and when, a court compels it to do so. The absence of a credible threat of injunctive relief may therefore encourage what is often described as “efficient infringement” or, in the licensing context, implementer holdout.
The early post-eBay decision in Paice v Toyota shows the practical consequence. After Toyota was found to infringe Paice’s hybrid-vehicle patents, the district court denied a permanent injunction and instead imposed an ongoing royalty. The Federal Circuit accepted that ongoing royalties may be appropriate in lieu of an injunction, but also recognised that courts should first allow the parties to negotiate because they are better placed than courts to value future use of the technology. That is the key point: when injunctions are unavailable, the court is pulled into setting the price for future use of the patented invention. That is not a task courts are institutionally best placed to perform.
Collision Communications v Samsung is a more recent version of the same problem. There, a jury found infringement, validity and wilfulness and awarded a substantial running royalty, yet the court denied a permanent injunction. The court rejected a categorical test that a non-practicing, licensing-based patentee can never establish irreparable harm and, supported by a Statement of Interest from the DOJ Antitrust Division and the USPTO, found that this licensing-only plaintiff had shown both irreparable harm and the inadequacy of damages. However, the court still refused to grant an injunction because the patentee failed to carry its burden to establish the balance of hardships and public-interest factors. Whatever one thinks of the outcome on the facts, the structural lesson is important: even after a large verdict and a finding of wilful infringement, the court may allow an infringer to continue using the technology subject to monetary relief. These cases show what “taking away injunctions” does. It does not merely reduce the remedy available at the end of litigation. It changes the choices parties make before and during litigation.
If the likely consequence of infringement is only a damages award or an ongoing royalty, an implementer may have less reason to negotiate early, design around, or clear rights before launch. The risk is that infringement becomes a commercially manageable option: use the technology first, litigate later, and pay only if liability is eventually established. That is the efficient-infringement concern in its most practical form.
This is why the proposed US RESTORE Patent Rights Act is relevant to the European debate. The very fact that US lawmakers have considered restoring a rebuttable presumption in favour of injunctions shows that the post-eBay settlement is contested. The US debate is no longer only about preventing automatic injunctions. It is also about the pendulum having swung far towards damages as the default substitute for exclusion, leading to other forms of litigation and a patent system that no longer grants enough protection to holders.
The Mechanism: Removing Injunctions Changes Conduct, Not Just Remedies
The point is clearest in SEP and FRAND licensing, but the logic applies more broadly. Standard-setting depends on reciprocity. The patent owner contributes technology to a standard and accepts a limit on its exclusivity by committing to offer a licence on FRAND terms. In return, implementers are expected to engage seriously with the licensing process once they use the standardised technology. Injunctive relief matters because it gives that expectation practical force. The SEP owner must not use the threat of an injunction to extract supra-FRAND terms, but the implementer must not be able to use the technology indefinitely while postponing any licence. If refusal to negotiate may lead to an injunction, delay carries real commercial risk. If the worst realistic outcome is a court-determined royalty payable years later, delay becomes easier to justify.
That is the conduct problem described as patent holdout or reverse hold-up. The claim is not that every implementer behaves strategically, or that every patentee deserves an injunction. It is that as the cost of delay falls, the incentive to delay increases. If using the technology now and negotiating later produces roughly the same financial outcome as taking a licence at the outset, the negotiating table becomes optional. This is why proportionality should remain a case-specific control, not a general policy against injunctions. Courts should be able to refuse, stay or tailor relief where the patentee’s conduct is abusive, where public-interest concerns require limits, or where the remedy would be disproportionate on the facts. But a system in which injunctions are broadly unavailable creates its own distortion: it weakens the incentive to take a licence in the first place.
Why Damages Are Often an Incomplete Substitute
The US experience remains relevant to Europe because damages are often an incomplete substitute for injunctions. Yes, in some cases damages will be adequate. But the problem is that damages do not preserve the full economic function of the patent. A patent is not only a claim to compensation. It is a right to exclude. That exclusionary quality allows the patent holder to decide whether to practise the invention, licence it exclusively or non-exclusively, hold it for further development, transfer it, or use it as part of a broader technology portfolio. Exclusive licensing depends particularly heavily on the ability to exclude. A licensee may be willing to pay a premium, invest in commercialisation or enter into a broader technological collaboration precisely because it is receiving protected access to the invention.
If unauthorised third parties cannot realistically be excluded, the patent holder can no longer guarantee meaningful exclusivity, and the commercial value of the licence may be substantially reduced. This concern has become more important as technology markets have increasingly moved towards licensing, partnerships and collaborative forms of commercialisation. It is especially significant for European industry, where many businesses excel at developing technologies that are licensed to others but do not themselves manufacture the final product or operate in markets closer to the end consumer. For those businesses, exclusion is not simply a means of keeping competitors out of their own market; it is what allows them to create valuable licensing opportunities, attract commercial partners and secure a return on upstream innovation, while also giving downstream partners the confidence to invest in bringing the technology to market.
Hologic v Siemens is useful here because it addresses that concern directly. The UPC Düsseldorf Local Division held that a patentee’s lack of a competing product was not, by itself, a bar to injunctive relief; a patent may be used as a protective tool even where the patentee does not practise the invention. That is an important European counterpoint to the post-eBay concern that licensing-based patentees risk being pushed towards damages-only relief.
The same problem arises in complex technology markets. In SEP and portfolio licensing, damages for one asserted patent may not capture the commercial reality of using hundreds or thousands of patented contributions across a product line. Damages assessed patent by patent may understate the value of access to the technology ecosystem as a whole. Licensing negotiations draw on information about the technology, commercial relationships and market dynamics that courts may not have. Although courts may sometimes need to determine the price of access to patented technology, that should remain the exception rather than the norm. Courts are not generally well placed to replicate a negotiated market outcome, particularly where there is a risk that rates may be influenced by broader policy considerations rather than evidence of commercial value. Without the credible possibility of an injunction, an unwilling implementer may therefore be tempted to delay, litigate and treat any eventual court-ordered payment as no more than a deferred licence fee.
At a more sector-specific level, a similar point applies in the life sciences, but for a different reason. Here, the concern is not only portfolio value; it is also market timing. Once a generic or competing product enters the market, damages may not fully restore the patent holder’s position, particularly where launch affects pricing, market share, and clinical adoption or exclusivity windows. The UPC’s approach in Boehringer v Zentiva is relevant for that reason. It held that imminent infringement may arise where the alleged infringer has “set the stage” for infringement, so that the preparations are complete and infringement is merely a matter of commencing the relevant act. This supports the broader point that injunctions are not merely retrospective remedies. They can preserve market conditions before damages become an imperfect form of repair. More broadly, properly used injunctions do not replace market negotiation with judicial control. They create the conditions in which negotiation can occur. They signal that continued unauthorised use is not cost-free and that a licence must be negotiated rather than imposed after the fact. Removing that pressure does not make the market more neutral; it shifts bargaining power towards the party already using the technology.
The Better Lesson for the IPRED Debate
The lesson for Europe is that injunctions should remain a central and ordinary remedy once infringement is established, subject to meaningful judicial control where proportionality is properly raised and evidenced. That distinction matters for the current IPRED debate. The Commission’s 2026 follow-up study identifies uneven implementation and limited proportionality reasoning in patent injunction cases. But that is not the same as showing that injunctions are structurally over-protective, or that IPRED should be reopened to make them harder to obtain across the board. A gap in reasoning is not necessarily a defect in the remedy. The emerging case law points in a different direction. It shows a system setting the limits of centralised enforcement while retaining legal certainty over proportionality, proof and territorial competence. Courts are not simply granting injunctions mechanically. They are deciding on a case-by-case basis when relief should be granted, limited, stayed, carved out, or refused.
That is why the opening question still matters, even though the current system passes it. What would be left of the patent if the right to exclude became too fragile to rely on? Formally, it is still a property right. In practice, however, it would amount to little more than a claim for compensation after the fact, since an infringer would have every reason to use the technology first and negotiate later, if at all. That is not the system IPRED built, and it is not the system described by the emerging case law. IPRED’s central compromise remains the right one: strong and effective enforcement across the internal market, subject to proportionate safeguards against abuse. Article 12 reinforces that balance. It permits Member States, in appropriate cases, to provide monetary compensation instead of an injunction only where the infringer acted unintentionally and without negligence, execution of the injunction would cause disproportionate harm, and compensation would be reasonably satisfactory to the injured party. This is framed as a narrow safety valve, not as a general basis for replacing exclusionary relief with a court-ordered payment. Although proportionality applies more broadly under Article 3, proposals to make damages a routine substitute for injunctions appear to go beyond applying proportionality in the form contemplated by Article 12 and instead alter the remedial balance established by IPRED.
IPRED does not need to be reformed to weaken injunctions. Courts should be encouraged to explain their proportionality reasoning more clearly, to demand evidence where proportionality is invoked, and to tailor relief where exceptional facts require it. But injunctive relief should remain what it is in the European enforcement tradition: the ordinary consequence of established infringement, subject to principled limits, not a remedy so fragile that infringement can be converted into a delayed payment obligation.