—introduction on the application for the patent preliminary injunction in China.
Today, Bridge IP Law Commentary will continue to introduce you the patent preliminary injunction in China Patent Law, and to follow the last essay on the system, this time we will introduce you the key points in the injunction application when the conditions are satisfied (as to the conditions, please refer to Matters for Attention in the Patent Preliminary Injunction Application in China, I).
I. When and whom to apply the patent preliminary injunction
The patent preliminary injunction should be applied to the court which is hearing the case in 15 days before the lawsuit. It regulates 15 days mainly due to the reason that the injunction will be relieved shall no lawsuit has been initiated in such period.
II. The scope of the interested party
The interested parties for the injunction are the person entitled to start the litigation, which include the licensee of the patent and the legal successor of the patent property. And among the licensees, those under the exclusive license contract could apply for the injunction alone, and as to the sole licensees, they could apply for the injunction when the patentee (licensor) waive the application.
III. The materials demanded
The materials mainly include the written application and relevant evidence, and the detailed are as the followings:
(I) The patentee shall present the documents which can verify the authenticity of the patent, including the patent certificate, the written claim, the written description, the annual patent fee receipts. And when the application relates to a patent for utility model, the retrieval report issued by the patent administration of the State Council shall also be presented (as to the function of the retrieval report, you may refer to our past essays).
(II) The interested parties shall present the license contract and the evidence of the contract recording in the patent administration department of the State Council. And the verification from the patentee or other evidences is demanded when the administrative record has not been made. For the application by the sole licensee alone, the demonstration of the waiver of the patent application from the patentee is demanded. And as to the successor of the patent property, they shall submit the demonstration that they have succeeded or be in the process of succession.
(III) The applicant should present the evidence for the defendant’s infringement or coming infringement against his/her patent, including the materials comparing the technology feature the between the patented product and the alleged infringing product, which could also be the evidence in charging against the infringement in the lawsuit.
In addition, the applicant shall also provide the guarantee according to the court’s request, generally the deposit in the bank. If the court approves the application, the court will freeze the bank account until the relief of the junction. The patentee is suggested to prepare the said deposit before the application.
IV. The court’s decided execution time and other issues
The court will issue the written decision within 48 hours after the reception of the applicant’s material, and will notice the defendant in 5 days of the immediate infringement stop when it agrees on the application. Besides, the defendant could apply for the review when dissatisfies upon the judicial decision, while the injunction will still be implemented during the review, thus the interest of the patentee. Furthermore, the patentee shall also prepare for the possible inquiry by the court between the parties during the deliberation and review period as mentioned above.
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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