Highlight: introducing the regulations on the patent preliminary injunction in China, as well as the applicant, examination standard. Also the question of whether the injunction could be applied in the lawsuit is also discussed.
As shows in the recent released data by China Supreme Court, the newly filed and judged intellectual property cases in the period from January to October are respectively 52, 708 and 38, 682, which have increased 42.2% and 39.79% year on year. Among which the cases with injunction applied are 126, and 184 for those applied for evidence preservation before the hearing and 18 for property preservation before the hearing.（For more details, pls refer to：http://www.legaldaily.com.cn/index/content/2011-11/28/content_3133300.htm?node=20908）
Basing on the data before, it could be concluded that the preliminary temporary injunction was applied in more than 100. Bridge IP Law Commentary today will introduce you the matters noticeable in the application of the injunction.
Before China participated in WTO, the preliminary injunction was amended as the Article 66 of the current Patent Law by China legislature basing on the Article 46 of TRIPS, and is detailed as follows:
If the patentee or interested party has evidence to prove that another person is committing or is about to commit a patent infringement, which, unless being checked in time, may cause irreparable harm to his lawful rights and interests, he may, before taking legal action, file an application to request that the people’s court order to have such act ceased.
When filing such an application, the applicant shall provide guarantee. In the event of failure to provide guarantee, the application shall be rejected.
The people’s court shall make a ruling within 48 hours from the time of its acceptance of the application. If an extension is needed under special circumstances, a 48-hour extension may be allowed. If a ruling is made to order to have the relevant act ceased, it shall be enforced immediately. The party that is dissatisfied with the ruling may file once for review, and the enforcement shall not be suspended during the period of review.
If the applicant does not take legal action within 15 days from the date the people’s court takes measures to have the relevant act ceased, the people’s court shall lift such measures.
If the application is wrong, the applicant shall compensate the losses suffered by respondent due to ceasing of the relevant act.
The regulation itself is not complicated, while it deserves your attention in many aspects in application, for this reason, Bridge IP Law Commentary makes the following analysis:
I. The applicant and those who not legally qualified to apply the injunction
As provided in the regulation, the patentee or the interested party is entitled to apply for the injunction. And the “interested party” is judicially limited in the judicial interpretation of the Supreme People’s Court, which includes the legal successor and the licensee of the patent. And it’s noticeable that the patent product seller is not included in the scope of the applicant.
II. The examination on the seriousness of the infringement
The system of “preliminary injunction” could protect the interest of the patentee to a large extend, stopping the infringement with the coercive measures from the beginning of the right protection. Therefore, the system could also be abuse-used by the patentee shall there were no strict examination, which shall focus on whether the infringement is serious and such “serious” could be determined from the following two aspects:
1. The infringement could be proved with the existing evidence
In the case when the court feel doubted about the infringement basing on the evidence presented by the applicant or the respondent could prove there is no infringement, such as the proof of the difference between the disputed patent and the patentee’s technology or is the existing technology, the court shall reject the application for the injunction.
2. The preliminary injunction shall be issued when unless being checked in time, the infringement may cause irreparable harm to right owner’s lawful rights and interests,
It has been argued how to define the irreparable harm, while by our study, it’s most adopted by the courts in China that such harm shall be kind of severe comprehensive losses. In other words, with only the claim of economic losses, the applicant is less likely to be issued the injunction for such losses could be made up by the final judgment.
For this reason, in addition to the economic losses, the applicant shall also present the evidence to demonstrate other losses he/she may suffer, which may include the commercial reputation and the loosing of the market shares of the product.
III. Could the injunction be applied during the litigation
The clauses referred above only regulate the preliminary injunction and regulations of the injunction after the lawsuit are not involved. That’s not the absence of legislature, for it has been legally provided by other laws, namely the system of advance execution. When the infringement is serious and the situation is urgent as said in the Civil Litigation Law, furthermore, the right and obligation is clear between the parties and any advance execution failure could affect the applicant’s life or production, also the respondent is capable for the execution, then the people’s court shall decide such execution on the application or with its own power. To stop the infringement is the liability shall be taken by the infringer, and also will be the claim of the right owner. In the litigation, the right owner could apply to the court to stop the infringement and for the advance execution.
In addition, the Article 17 of the Provisions on the Several Issues concerning the Law Application to Stop the Infringement before the Lawsuit by the Supreme People’s Court also makes the specific regulation on this that the right owner may claim to stop the infringement when initiating the lawsuit, and the people’s court may hereby decided to start the advance execution. (To be continued…)
Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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