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The equitable obligation of confidence is used to protect information from unauthorised misuse or exploitation by others. The action now has two significant aspects; it is traditionally used to protect commercially valuable information such as trade secrets, and it is increasingly used to protect personally private information. Whether the same considerations apply to these two aspects of the action is an open question. Though the obligation of confidence is one of the oldest in equitable jurisdiction, it has only recently been called upon to protect interests previously thought to be ineffectively protected. The long hiatus between the action’s origins and its current development is partly due to the unusual position confidentiality has occupied. Whereas many equitable responsibilities, such as trust or fiduciary obligations, have no direct common law counterparts, confidentiality can be regulated by regimes other than equity. Up until the mid-twentieth century most cases concerning the equitable obligation of confidence also involved a breach of an obligation of confidence not sourced in equity
The law and practice relating to the Crown (or state) lands of Australia is often a topic not well covered in a student’s journey through property law. Yet, Crown lands legislation dealing with the alienation and management of the lands of the Crown has been a feature of the legislative framework of the various Australian jurisdictions since their respective creations.Given that some such interests or rights authorised under the various legislation may rarely be granted or exist only in small numbers, this chapter focuses on some of the enduring principles of Crown lands law and practice.
This chapter discusses the key knowledge requirements or threads of Crown land law and practice that will give both student and practitioner a solid understanding of how to approach the complex legislation of the jurisdiction with its peculiar interests and rights; the public interest, modern land tenure, and Crown lands legislation; Crown lands legislation and Crown land; grants and the Crown’s general power to deal with Crown land; reservations and exceptions in Crown grants; interpreting a Crown grant; public purpose land
The chapter addresses the question of how to continue developing artificial intelligence (AI) without challenging and infringing legal norms, principles and values, represented by the current legal frameworks of liberal democratic societies. To answer this question, the chapter first of all briefly deals with the concept of legality (what it means to be legal in the age of disruptive technologies) and then relates it to two specific private law challenges: The first challenge is related to intellectual property law and is represented by the clash between trade secret protection of algorithms and the increasing public need for algorithmic transparency and explicability; the second challenge is related to consumer protection where the questions of liability and the shifting roles of the main stakeholders build the space for discussing who is who in building, developing and using AI.
The Freedom of Information Act 2000, which came into force in 2005, provides, for the first time, a legally enforceable right of access to official information. This chapter examines the benefits of freedom of information and the scheme and scope of the Freedom of Information Act, examining how it balances the competing interests in the disclosure and retention of official information. The enforcement mechanisms in the Act are outlined and the ministerial veto power discussed. The chapter concludes by examining the effectiveness of the openness regime imposed by the Freedom of Information Act.
This article examines the right to commercial speech that has been read into the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Restrictions on this right are only permitted if they come within the ambit of the exhaustive list of reasonable restrictions under Article 19(2), under which public health is notably absent. Nevertheless, through the doctrine of harmonious construction, the Indian judiciary have adopted a purposive interpretation to circumvent the omission of public health by carving up freedom of commercial speech into two parts: protected speech which furthers public interest and unprotected speech which is purely commercial. Moreover, the Indian courts have construed these provisions in light of the right to life under Article 21 and the health-related Directive Principles of State Policy under Part IV of the Constitution. This article concludes that judicial creativity in India has consistently been used in favor of protecting public health.
The regulation of patent enforcement in Europe is characterized by the typical multi-layered EU law system of primary EU law, secondary EU law, i.e. unification and harmonization of member states’ laws by way of regulations and directives, and member states’ laws which in particular implement the EU directives into national law.1 Primary EU law, insofar as it is similar to written constitutional law, establishes the competence and baseline for all EU legal actions. Secondary legislation is based on the competences of the EU established in primary law and unifies certain areas of law (by way of directly applicable unitary regulations) or harmonizes member states’ laws by way of directives that are not directly applicable but addressed to the member states and that typically leave the member states certain leeway for manoeuvre when they implement such directives in their national law systems. Both EU primary and secondary legislation take primacy over national law; this so-called principle of primacy of EU law has been developed by the Court of Justice of the European Union (CJEU) in its case law2 and is meanwhile also laid down in a declaration concerning primacy,3 which is part of the Treaty of Lisbon.4
All patent cases are heard by the specialized IP chamber of the District Court of the Hague. Appeals (which are de novo) are heard by the specialized chamber of the Court of Appeal of the Hague. Thereafter an appeal (on points of law) is possible without the necessity of leave to the Supreme Court. The specialized chamber in first instance issues between about fifty and seventy decisions each year. The Court of Appeal issues about twenty and the Supreme Court around five. Of course, numbers vary from year to year. The courts have a good reputation in patent matters. The UK, German and Dutch courts take into consideration each other’s decisions in cases invoking the same European Patent and normally give reasons if they do not follow each other’s decision (which is more the exception than the rule). The Netherlands does not have a bifurcated system for patent cases: validity and infringement are always dealt with in the same proceedings. Thus, if an infringer challenges the validity of the patent, the court will normally first decide on the validity of the patent and only turn to infringement if the validity of the patent is upheld. In other words, a Dutch court will not order an injunction unless it has first established that the patent is valid, and the only way that an injunction can be granted on the basis of a patent that is later invalidated is if the decision on validity is overturned on appeal.1 This is true in proceedings on the merits, where the court will always rule on the validity of the patent if it is challenged, but also in interim relief proceedings, where the court will make a preliminary assessment of the patent's validity before imposing interim relief, denying it if there is a reasonable, not-to-be-ignored chance that the patent will be revoked or invalidated.
In the preceding chapters of this book, we have seen a variety of national approaches to the issuance and tailoring of injunctive relief, characterized by a range of similarities and differences among jurisdictions. In this chapter, we synthesize the principal features of these different legal systems, provide an analytical framework for comparing them, and offer our observations about trends and the outlook for the future.
The trials on 17-27 April, sentences on 28 April, and executions on Monday, 1 May counted among the greatest public sensations of the era. Adolphus’s brilliant defence rested on the conspiracy’s absurdity and the crown’s dependence on the evidence of the unreliable turncoat, Adams. Chief justice Abbott, an unlovely enemy of radicals, advised the jury to deliver guilty verdicts, which they did. Abbott then ordered eleven conspirators to be executed as traitors. Five, however, were shown ‘mercy’ and transported, and one had his sentence respited. Adolphus asked them all to write in their own hands memento passages for him to distribute to his cabinet friend in facsimile.
Israeli law, in general, is based on the principles of English common law, in which an injunction is perceived as a form of equitable, discretionary relief.1 Historically, injunctive relief was granted based on discretionary criteria, including the irreparable injury rule (in the absence of an injunction, the plaintiff would be caused an irreparable injury, which could not be compensated for by monetary relief); the balance of hardships between the plaintiff and defendant (known also as the “balance of convenience”); and the clean hands rule (equitable relief is only granted if the plaintiff acted in a decent and moral manner, disclosing the relevant facts).2 Another important criterion was the public interest.3
Canada is a federal system with jurisdiction shared between the federal government and the provinces. Patent law is a matter of exclusive federal jurisdiction and is based on the federal Patent Act. The federal nature of Canada is reflected in a bifurcated judicial system. The Federal Courts of Canada, a statutory court system with defined jurisdiction,1 and the provincial superior courts, courts of inherent jurisdiction, corresponding to the traditional English common law courts, both have jurisdiction over patent infringement.2 However, the Federal Court has exclusive jurisdiction to declare a patent invalid,3 and the very substantial majority of patent cases are decided by the Federal Court. Consequently, it is largely the case law of the Federal Courts which governs the grant of injunctive relief in patent cases, subject to the guidance of the Supreme Court of Canada.4
For patent litigation, Germany is among the most frequented venues in Europe.1 Both large, international law firms and highly specialized boutique firms are active before German courts. Not only the Federal Supreme Court (Bundesgerichtshof – BGH) but also a handful of major first- and second-instance venues, such as Düsseldorf, Hamburg, Mannheim and München, play an important role in shaping German patent law. Stakeholders, such as patentees, licensees, inhouse and outside counsel, scholars and non-German courts or lawmakers, therefore have a strong interest not only in the established legal framework for patent litigation in Germany, but also in shifts this framework is, of late, undergoing. At the same time, the language barrier complicates insights on these matters, not least for Anglo-American stakeholders, although a slowly increasing part of scholarship, and even of case law, is available in English. Against that background, this chapter sets out to explain basic structures and recent developments in German patent injunction law. It covers the main types of and requirements for such injunctions under German law (Section A), the injunction’s scope as claimed and granted (Section B), bifurcation and stays (Section C), defences and limitations (Section D), as well as alternatives to injunctive relief (Section E), before a conclusion and an outlook (Section G) round off the chapter.
United States courts take a context-sensitive approach to the grant of injunctive relief for US patent infringement. Such context-sensitivity is consistent with the US Patent Act, which indicates that courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”1 In common law jurisdictions, “equity” is generally viewed as resistant to strict rules and willing to make exceptions in light of particular circumstances.2 In accordance with this vision of equity, the generalist trial judges of US district courts3 consider various factors in determining whether injunctive relief is justified and have great discretion to tailor injunctions in a particular case.4 On the other hand, US courts have continued to grant injunctive relief in most infringement cases in which a patent owner prevails, particularly when the patent owner is in direct competition with the adjudged infringer.5 In contrast, US courts commonly deny injunctive relief for patent owners who are “nonpracticing entities” or “patent trolls” – forms of patent-owning entities that do not engage in substantial commercialization or use of the patented invention or variants of it.6 Further, the US Court of Appeals for the Federal Circuit has held that the US Patent Act does not authorize injunctions to correct past patent infringement.7 Instead, injunctions are to be granted only as a means to prevent future infringement.8
Public interest issues have the potential to play a significant role in the evaluation of mergers and acquisitions in Africa's regional competition laws. A case in point is the Common Market for Eastern and Southern Africa (COMESA): its regional competition authorities have jurisdiction to evaluate transactions within the Common Market. To that end, COMESA's regional competition law enumerates specific public interest factors regarding mergers and acquisitions. Further, COMESA's regional competition law permits the consideration of additional factors under the rubric of public interest, without specifying what these factors are. On this basis, COMESA's regional competition authorities have gradually created precedents on incorporating public interest considerations. This illustrates the point that purist positions towards competition law do not serve Africa's socio-economic development goals. Therefore, the challenge facing COMESA's regional competition authorities is the application of the public interest in a manner that remains faithful to the economic doctrine that underpins competition law.
Most UK patent litigation takes place in England and Wales, where it is heard by either the Patents Court (larger, more complex and/or more valuable cases) or the Intellectual Property Enterprise Court (smaller, less complex and/or less valuable cases). These are both specialised courts. It is normal in both courts for issues of infringement and validity of the patent to be heard together. The intellectual property bar in England and Wales consists of a considerable number of highly specialised and skilful advocates, most of whom have a Science, Technology, Engineering and Mathematics (STEM) degree as well as a legal qualification. They are instructed by both large multinational firms and small boutique firms of lawyers, and they are well known for being innovative, particularly with regard to procedural questions. Although there is a reasonable volume of UK patent litigation, disputes concerning injunctions are relatively infrequent.
In France, the question of injunctive relief for infringement of patents has only given rise to a very limited number of academic studies.1 Although there are quite a lot of court decisions dealing with this topic, the courts generally do not explain their reasoning on this particular point. In France, patent injunctions can only be handled2 by the specialized IP chambers3 of the general jurisdictions of Paris, which are the Tribunal Judiciaire (formerly known as the Tribunal de Grande Instance) de Paris on first instance, where the judgment is generally delivered within eighteen months, and, on appeal, the Cour d’appel de Paris, where the cases are generally adjudicated within twelve months. The highest court, the Cour de cassation only deals with matters of law, and not fact.4 On average, 170 court decisions on patent litigation were delivered per year in France between 2015 and 2019.
Injunctive relief can be found in all Polish patent statutes in the twentieth and twenty-first centuries.1 The Industrial Property Law2 (IPL) that currently regulates industrial property rights including patents also envisages this form of relief. Article 287 section 1 of the IPL provides that a patentee whose patent has been infringed, as well as exclusive licensees, may – apart from other remedies – demand injunctive relief. Generally, injunctions are perceived as a necessary corollary to patents. Patents, as exclusive rights, provide patentees with exclusivity to use an invention within limits provided in the law. The availability of injunctive relief allows patentees to protect that exclusivity.
Injunctive relief made its first appearance in Italian legislative texts with the adoption of the 1939 Law on Patents, which empowered a court dealing with an infringement action to issue, on request of the interested party and, at court’s discretion, upon payment of a bond, an interim1 injunction preventing the fabrication and use of the patented invention for the time needed to reach a decision on the merits and for such decision to become final.2 For a long time, this has been the only provision mentioning injunctive relief in the Law on Patents.
At the time of writing, the United Kingdom remains a member state of the European Union. Accordingly, this chapter is written from that perspective. My thesis is simply stated: European law not merely enables, but requires, the courts of the member states to be flexible when considering whether or not to grant an injunction in a patent case, and to tailor any injunction to the circumstances of the case. An injunction can only be granted when, and to the extent that, it is proportionate and strikes a fair balance between the fundamental rights that are engaged. All that is needed is for the courts of the member states consistently to apply the principles laid down by the legislature and by the Court of Justice of the European Union.
On 1 September 2013 the jurisdiction in intellectual property matters in Finland was reformed. The Market Court, which was created in 2002 for consumer protection and competition law cases, was now also given exclusive jurisdiction in patent, trademark and design registration appeals, and intellectual property disputes (infringement, invalidity etc.).1 Previously, the District Court of Helsinki had exclusive jurisdiction in patent disputes and the Finnish Patent Office dealt not only with registration matters but also with registration appeals.