Legal Remedies Against Abuse, Misuse, and Other Forms of Inappropriate Conduct of IP Right Holders

Abstract

The abuse (or misuse) defence against various forms of dysfunctional enforcements of IP rights appears to be, at first glance, an efficient remedy, which surely entails faster effects than the lengthy prosecution of a compulsory licence. At a closer look, however, the legal consequences of an abuse defence are quite unclear. International law -to the extent that it addresses issues of abuse- does not offer guidance. Furthermore, it's questionable whether approaches of equity, primarily known in common law countries (notably the denial of an injunctive relief in case of an inappropriate lawsuit), provide convincing results -apart from the fact that civil law systems mostly lack such approaches anyway. We rather need an intermediate solution between unrestricted enforcement and non-injunction. Particularly, more balance may be achieved through monetary compensation to the right holder: In case enforcement of an IP right proves to be abusive, this right should still not become valueless to its holder by denial of injunctive relief; rather, a downgrade of the right in terms of a "liability regime" may be justified. Indeed, the compulsory licence permits usage against payment to the right holder. If its current conception is deemed to be too complex in practice, and if it is illusory that the abuse defence constitutes a convincing alternative, the legal setting of the compulsory licence should be modified.