Research On Interim Measures In Patent Infringement Litigation

With the vigorous development of the patent system in China, the proportion of the patentinfringement litigation in Chinese civil litigation is increasing gradually. The importance of interimmeasures, which are different from the final relief measures in the patent infringementlitigation, has become even more prominent. There are modifications for interim measures of thepatent infringement litigation in all three amendments of Patent Law. Especially in the thirdamendment, the stipulations about act preservation have been deleted, while the provisions aboutpretrial evidence preservation of the patent infringement litigation have been added. However, incurrent research results of domestic scholars, there are still inconsistencies identified for interimmeasures in the patent infringement litigation and there are relatively less concrete researches aboutinterim measures.This article put forward the perfection and development advice about the interim measurers ofthe patent infringement litigation under the real legal framework by collecting the basic problemsof interim measures in present patent infringement of our country, summarizing and concluding thecurrent research results at home and abroad, analyzing the legitimacy and value significance of theinterim measurers in the patent infringement litigation in China. The first part of the articleconfirms the interim measures in patent infringement of our country, analyses in detail that themeasures for ordering to stop tort before action and interim measures for pretrial evidencepreservation, and then discusses the independent relationship of both in law and the sequence ofapplication and processing in the implementation process. The second part is the comparativeanalysis on interim measures in patent infringement litigation and general civil litigation, and thensummarizes the specificity of interim measures in patent infringement litigation and its systemdistinction and practice distinction compared to interim measures in general civil litigation.Compared to the interim measures in general civil litigation, interim measures in patentinfringement litigation are more stringent both in system and practice. The third part introduces thelegislation stipulation of provisional injunction system before foreign patent litigation, mainlyanalyses the relevant stipulations of TRIPS Agreement and provisional injunction in China andAnglo-American legal system. Provisional injunction before litigation is the one of the main waysfor redress of patent infringement in developed countries. However, the system of pretrial evidence preservation in China is too simple, the construction of the system is not perfect, and the system islack of principle provisions. The fourth part is the legitimacy analysis and value thinking of theinterim measurers in the patent infringement litigation. The formulation and implement of interimmeasure shall be guided in accordance with the legitimacy of law, and reflect the value of law inorder to better with international practice and protect the needs of public interest. Then the articlesummarizes the improvement suggestion about the interim measurers in patent infringementlitigation of our country under the guidance of formal part, which is the fifth part, including that theprovisions for review standard of interim measures shall be more detailed; the guarantee methodshall give priority to security deposit; punitive compensation for interim measures error; afterapplying the customs protection of patent, patentee shall apply interim measures again and applythe transfer of guarantee at the same time to achieve the connection between interim measures andcustoms protection.