Please use this identifier to cite or link to this item: https://hdl.handle.net/10419/232243 
Year of Publication: 
2020
Series/Report no.: 
Research Paper No. 119
Publisher: 
South Centre, Geneva
Abstract: 
Authority for national judiciaries to issue permanent and preliminary injunctions is required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Articles 44 and 50. But the TRIPS Agreement does not require the issuance of injunctions in any particular circumstances, and does not harmonize the laws on which national jurisdictions derive their injunctive relief authorities. Thus, countries remain free to refuse prohibitory injunctive relief for adjudicated or likely patent infringement, particularly if “reasonable compensation” is offered in the form of an “ongoing royalty” or an “interim royalty” payment, which acts similarly to a compulsory license. This paper explains the existing legal standards for permanent and preliminary injunctions in the United States and Canada and discusses trends regarding the issuance or denial of injunctions for pharmaceutical patents in those jurisdictions (with occasional reference to other common-law jurisdictions). Although judges in these jurisdictions more routinely deny preliminary prohibitory injunctions, legislation linking generic pharmaceutical regulatory approvals to the patent system and imposing stays of such approvals normally avoid the need for such preliminary injunctions. Consistent with the TRIPS Agreement, developing country judges may make different choices, based on the ability to provide reasonable compensation for harms or based on a different weighing of the importance of assuring affordable access to medicines relative to providing innovation incentives.
Subjects: 
Access to Medicines
Affordable Medicines
Canada
Compulsory Licenses
COVID-19
Flexibilities
Generic Medicines
Health
Injunction
Innovation
Intellectual Property
Pandemic
Patent
Patent Linkage
Permanent Injunction
Pharmaceuticals
Preliminary Injunction
Public Health
TRIPS
United States (US)
Document Type: 
Research Report
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