Preliminary Injunction In Patent Infringement Litigation In China

It’s mainly provisional measures of redress that preliminary temporary injunction inpatent infringement.The traditional way of relief follows the judicial logic of“wrongdoing-damage-compensation”, but injunction system can provide judicial pro-tection to the oblige even before the wrongdoings or the further damages occur, it isprovisional and has not to be based on actual damages. Therefore, compared with thetraditional means of relief-after-damages, the injunction system has a natural strength,which enables it to play a major role in protecting the Intellectual Property Rights inparticular. But, at the same time, because an injunction is granted before a court trial ismade and is usually based on the argument of one party without debating or declaring, itwould normally be considered as against procedural justice. So the use of this kind ofso-called “Against Procedural Justice, For Substantial Justice” relief should be strictlyand judiciously restricted.The patent which belongs to the intellectual property rights is different from civilright. It has the peculiarities of intangible objects, strict time limit and relativeinternationalism. Therefore, when the patent receives infringement, the obligee is verydifficult to protect through the traditional measure of afterwards remedy, and by now weonly can depend upon sues. Furthermore, the long processing of litigation may hinder theacquirement and protection of the rights of oblige. Under this condition, efficientpreventing of the tort is more important than after wards remedy. And propose someviews and the suggestion that how to improve our country’s preliminary temporaryinjunction. This article first chapter mainly explained the injunction system’s constructionand its background, also the kind and principle of the injunction. The second chaptermainly introduced the preliminary temporary injunction in two legal systems and theTRIPS agreement, and carried on the comparison and the analysis. The third chapter mainly elaborated our country’s present legislative situation about preliminary temporaryinjunction, and point out the injunction system’s insufficiency in our country fromlegislation, theory, practice, and so on. The fourth chapter mainly elaborated author’stentative plan and suggestion about the preliminary temporary injunction in our countryand propose some concrete measures.