Provisional Injunctions in Patent Infringement
In cases where patent infringement is occurring, if a provisional injunction is granted, an injunction (performance) with content similar to the final judgment can be realized earlier than through a final judgment.
For this reason, a provisional injunction in patent infringement is sometimes called a satisfactory provisional disposition or a decisive provisional disposition.
So far, these are the positive points.
As a negative point of a provisional injunction in patent infringement, there is the fact that collateral or a security deposit is basically required (Article 14 of the Civil Provisional Remedies Act).
In addition, it is the general rule to file a separate main lawsuit, and if a main lawsuit is not filed, there are cases where the provisional injunction order may be revoked (Article 37, Paragraph 3 of the Civil Provisional Remedies Act).
From here on is my personal opinion, but I believe that filing for a provisional injunction is also one means of dispute resolution. In other words, I think the filing of a provisional injunction itself is a means to induce the opposing party toward a settlement or the like.
・Article 14 of the Civil Provisional Remedies Act: Collateral for Provisional Orders
(Collateral for Provisional Orders)
Article 14: A provisional order may be issued by requiring collateral, by making the implementation of the provisional execution conditional upon the provision of collateral within a certain period deemed appropriate, or without requiring collateral.
2. In the case of providing the collateral referred to in the preceding paragraph, if there are grounds that make it difficult to deposit it at the official depository referred to in Article 4, Paragraph 1 without delay, the court may grant permission to deposit it at an official depository within the jurisdiction of the district court having jurisdiction over the obligee's domicile or office location, or any other location the court deems appropriate.
・Article 37 of the Civil Provisional Remedies Act: Revocation of Provisional Order Due to Failure to File Main Lawsuit, etc.
(Revocation of Provisional Order Due to Failure to File Main Lawsuit, etc.)
Article 37: The court that issued a provisional order must, upon the obligor's petition, order the obligee to file a main lawsuit and submit a document proving such filing within a certain period deemed appropriate, or if a main lawsuit has already been filed, to submit a document proving its pendency.
2. The period referred to in the preceding paragraph must be two weeks or more.
3. If the obligee fails to submit the document referred to in Paragraph 1 within the period specified pursuant to the provisions of that paragraph, the court must revoke the provisional order upon the obligor's petition.
4. If, after the document referred to in Paragraph 1 is submitted, the main lawsuit referred to in that paragraph is withdrawn or dismissed, it shall be deemed that the document was not submitted.
5. Regarding the application of the provisions of Paragraph 1 and Paragraph 3, if the main case is a case prescribed in Article 257, Paragraph 1 of the Act on General Rules for Application of Laws (Act No. 52 of 2011), a petition for conciliation to the family court; if the main case is a case prescribed in Article 1 of the Labor Tribunal Act (Act No. 45 of 2004), a petition for labor tribunal proceedings to the district court; if there is an arbitration agreement regarding the main case, the procedure for commencing arbitration proceedings; and if the main case is a case regarding a claim for damages for harm caused by pollution as prescribed in Article 2 of the Act on Settlement of Environmental Pollution Disputes (Act No. 108 of 1970), an application for an award regarding liability for damages as prescribed in Article 42-12, Paragraph 1 of that Act (referred to as "liability award" in the following paragraph) shall be deemed as the filing of a main lawsuit.
6. If the conciliation case referred to in the preceding paragraph, the labor tribunal proceedings referred to in that paragraph, the arbitration proceedings referred to in that paragraph, or the liability award proceedings referred to in that paragraph are terminated without the establishment of a conciliation, a labor tribunal (including the establishment of a conciliation pursuant to the provisions of Article 16 of the Civil Conciliation Act (Act No. 222 of 1951) as applied mutatis mutandis in Article 29, Paragraph 2 of the Labor Tribunal Act, and the conclusion of a labor tribunal case pursuant to the provisions of Article 24, Paragraph 1 of the Labor Tribunal Act), an arbitral award, or a liability award (including the establishment of an agreement between the parties referred to in Article 42-24, Paragraph 2 of the Act on Settlement of Environmental Pollution Disputes), the obligee must file a main lawsuit within the same period as the period specified pursuant to the provisions of Paragraph 1 from the date of such termination.
7. The provisions of Paragraph 3 shall apply mutatis mutandis to cases where the obligee fails to file a main lawsuit pursuant to the provisions of the preceding paragraph, and the provisions of Paragraph 4 shall apply mutatis mutandis to cases where the main lawsuit referred to in the preceding paragraph is filed, or where the lawsuit is withdrawn or dismissed after it is deemed that the lawsuit was filed pursuant to the provisions of Article 22, Paragraph 1 of the Labor Tribunal Act (including cases where applied mutatis mutandis in Article 23, Paragraph 2 and Article 24, Paragraph 2 of that Act).
8. The provisions of the main clause of Article 16 and Article 17 shall apply mutatis mutandis to a decision pursuant to the provisions of Paragraph 3 (including cases where applied mutatis mutandis in the preceding paragraph).
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