U.s. Intellectual Property. The Trips Agreement Under The Ban On Research

As an international convention. TRIPS is binding on its contracting members. The USA is a contracting member of TRIPS, as such it is obliged to fulfill its obligations under the TRIPS from legislation, judicial and administrative practices aspects. But in practice, the attitude of the USA towards international convention is not stable, which sub-stilly reflects in its performance of TRIPS. For example, without the legal basis for granting compulsory license to those entities for commercial purposes nor based on any precedence, the US courts have denied to issue permanent injunction and directly ordered the patent infringers to pay compensation in one shot or by installment, or pay royalty to patent owner for using the target patent after judgment, which forms the de facto compulsory license effects. This essay aims to discuss whether such de facto compulsory license abates the patent protection degree, or violates the patent exclusive right and license right under the Article 28 of the TRIPS, and whether it violates the substantive or procedural obligation of compulsory license as specified under the TRIPS? I will look into the legal issues involved therein and offer some ideas and proposals.The essay is divided in four parts:PartⅠmainly summarizes the substantive and procedural obligations of the members under the TRIPS, including those from legislation, judicial and administrative practices aspects and the attitude of the USA towards it; PartⅡmainly introduces the injunction remedy system in civil laws of the USA; PartⅢmainly analyzes the automatically issuance of permanent injunction upon the finding of patent infringement in lawsuit before eBay case, eBay case's development and the conversion of the application of permanent injunction in patent infringement cases thereafter, which leads to the discussion of two questions mentioned in the above paragraph; PartⅣmainly analyzes the deficiencies existed in the compulsory license system of China and we shall learn some from the judicial practice of the USA to make up the deficiencies therein so as to promote the technical progress, maintain the stability of the economy and safeguard the lawful rights and interests of the enterprises.