A Study On The System Of Interim Injunction In Patent Law

In the field of intellectual property rights, especially that of patent rights, the interim injunction is an important provisional measures of remedy. It has been playing an inimitable role in the field of timely protecting the legitimate rights and interests of the obligee, and that of avoiding the suffering of irreparable injuries from the future.Having a history of hundreds of years, the interim injunction has been developed to a mature level in current years in the western developed countries. This system was introduced to our country under the background of china’s being admitted as a member of the WTO. It, although having taken an important role with respect to the provisional protection of intellectual property rights, generally speaking, is far from perfect.Through the method of historical research and comparative analysis, the author in this article expounds the origin, development, status quo, and the deficiency of the interim injunction of the main countries in the world. And by comparing and analyzing the fundamental theory, the entity and procedure of this system, this thesis gives suggestions to the improvement thereof in China.This thesis is divided into five parts.The first part introduces the concept of interim injunction, and explores its historical evolution. The interim injunction system, being originated from Rome law, through the development of the church law, European royal law, and eventually, at the end of the fourteenth and the beginning of the fifteenth Century, was established in England in equity law.The second part discusses the fundamental theories of the interim injunction which include the theory of anspruch, interests balancing, maximal efficiency of resource distribution, and of procedure justice. Due to the existence of such theories, the interim injunction system has rationality and logic in jurisprudence.The third part expatiates the differences and connections between the inerim injunction and the property preservation, the advanced execution, and so on. Although there are many similar characteristic between them, each of them has played an important role which can not be replaced by other remedial measures.The fourth part compares and analyzes the interim injunction in the US and in China. Both countries have the parallel review criteria, namely "the likelihood of success on the merits","irreparable harm","interests balance between the parties","consideration of the public interest"; there are also certain similarity in terms of the procedure. But generally speaking, this system is more reasonable than that of China in detail.And it also presents a lot of reference to the development thereof in China.On the basis of the analysis mentioned above, with respect to the entity and procedure of the interim injunction system, the fifth part gives some suggestions which mainly includes the improvement of the review criteria and the start-up mode of the lawsuit of tort, the introduction of the procedure of the hearing and the arbitration, the perfection of the reconsideration procedure and the execution.