Resisting the Transplant: Why the EU Must Preserve IPRED’s Rule- Based Proportionality in IP Enforcement

The paper evaluates the efficacy of Directive 2004/48/EC (IPRED) in harmonizing the civil enforcement of intellectual property rights (IPR) within the European Union. It focuses on the proportionality principle as a foundational steering mechanism for remedies, particularly permanent and preliminary injunctions. Through a comparative analysis, the study contrasts the EU’s rule-based remedial architecture with the United States’ post-eBay framework, which relies on broad equitable discretion. The analysis covers critical jurisprudential developments, including CJEU rulings on intermediary liability, the Huawei v ZTE protocol for standard-essential patents (SEPs), and the Unified Patent Court’s (UPC) emerging proportionality jurisprudence. The author argues that importing US-style discretionary tests into the EU is unnecessary and potentially disruptive. Instead, the paper concludes that the current EU model – tempering statutory entitlements with targeted proportionality safeguards – effectively ensures legal certainty and supports innovation-driven growth.