Research On Pre-trial Provisional Measures Of Patent Infringement In China

In response to the urgent situation of the international financial crisis and enormous challenges, our country promulgated the "Outline of National Intellectual Property Strategy" on June 5, 2008. At the same time in order to transform the country's economic development and carry forward the spirit of independent innovation in the whole society and protect intellectual property effectively, our country formulated the strategic framework for protecting intellectual property. The third amendment of The Patent Law of People Republic of China is one important measure to implement the Outline of National Intellectual Property Strategy, the amendment of pre-trial provisional measures of patent infringement can help to protect the patentee's legitimate rights timely and effectively.Interim measure before a patent infringement produced in the common law system of the first temporary ban on the common law system and developed from subsequent civil law also established a corresponding system. In order to correspond to the interim measure of Intellectual Property in TRIPS Agreement for China's accession to the WTO in 2001, our country introduced the provisions of the interim measures system in the domestic intellectual property legislation .The pre-trial provisional measures of patent infringement system was first proposed in 2000 of the Second Amendment. The pre-trial preservation of evidence was added and the pre-trial preliminary injunction of patent infringement was improved when the patent law was amended in the third time in 2008. The Supreme People's Court also published series of relevant judicial interpretations of patent law .In recent years, the application of pre-trial provisional measures of patent infringement cases increased gradually in the people's courts across the country, the problems in judicial practice is gradually exposed, too. Therefore, the in-depth study of pre-trial provisional measures of patent infringement can help to protect the legitimate rights of patentee and the legitimate rights and interests of the accused infringer timely and effectively, so that the legitimacy of the system to play its role really is significant.This paper focuses on pre-trial provisional measures of patent infringement, specifically including the pre-trial preliminary injunction of patent infringement, pre-trial preservation of evidence of patent infringement and pre-trial preservation of property of patent infringement .This paper is divided into three parts which are introduction, body and conclusions. The body is divided into three chapters.The first chapter mainly deals with the production and the basic content of the pre-trial provisional measures of patent infringement, which is divided into two parts: the first part describes the production of pre-trial provisional measures.; the secondpart described the conception of pre-trial provisional measures of patent infringement. The second chapter mainly discusses the crisis of development by pre-trial provisional measures of patent infringement. This part mainly researches the relevant elements of the second and third amendment of the patent law.The third chapter is the focus of this paper which is divided into two parts:The first part analyses the current status and problems of the pre-trial provisional measures of patent infringement by researching the relevant data such as: 1. The standards of the pre-trial preliminary injunction of patent infringement is not clear enough. 2. The protect of the respondent of pre-trial preliminary injunction of patent infringement is inadequate. 3. The duration of the judgment of pre-trial provisional measures of patent infringement should be further clarified.The second part focuses on the proposal of pre-trial provisional measures of patent infringement, for the first part of the specific issues were shortcomings in legislation and judicial practice of view, then put forward to solve the problem and improvements. Firstly, this part proposed the standards of pre-trial preliminary injunction of patent infringement such as allowing the parties to review decision to appeal, increasing the evidence of the parties to the appeal before the preservation of evidence procedure, introducing the Evidence Discovery function. Then this part gives some suggestions on the perspective of judicial practice.Overall, the above-mentioned suggestions was hoped to help developing the pre-trial provisional measures of patent infringement in legislation and judicial practice.