Research On The Restriction Of Patent Injunctive Relief

Desist from an infringement is a injunctive relief which is widely applied in acivil litigation. In a patent infringement litigation, it is the main remedy the plaintiffsappeal. Desist from an infringement is the most effective and the most direct way tostop the patent infringement. Whether the ruling to injunctive relief made a hugeimpact on the interests of the parties. The judicial practice of China’s patentinfringement shows that the courts tend to support to require the defendant to stopinfringement claims. However, with the improvement of socio-economic developmentand the patent system, the drawbacks of certainly apply to injunctive relief have beengradually emerged, causing many scholars questioned.The patent gives the patent holder exclusive rights. But the establishment of thepatent system is not just in order to protect the private right of the patentee, moreimportantly, in order to stimulate innovation and promote social development. Thepatent system is the product of the balance between the private interests of thepatentee and social and public interests. In patent infringement cases, the judge cannot only consider the interests of the patentee, also should take into account theinterests of the other party. When the case involved the social and public interests, usethe remedies of stop the infringement should be careful considered.In contrast to the U.S. patent system and judicial precedents, it can be found thatin the U.S. patent law, the injunctive relief of stopping the infringement is calledpermanent injunction. Throughout the history of the permanent injunction, it will befound that the injunction system is evolved by the equity method.it is a supplement tocommon law remedies. However, the permanent injunction system is indeed a verypowerful relief measure. With the development of socio-economic, the permanentinjunction not only be means for patentee to safeguard their own interests, but alsobecome the tool for “patent troll” to obtain excess premium. In judicial practice, theapplication of permanent injunction has been questioned, leading to the court changethe application of permanent injunction. The eBay case breaks the "general rule"which the U.S. courts have adopted for a long time, and re-established the "four factortest”. This makes the United States District Court based on evidence whenconsidering whether to apply a permanent injunction.As a result of regulations concerning injunctive relief are too ossified, lacking of specific applicable rules in legislative aspects, the apply of injunctive relief of thecourt is too rigid in judicial practice. The court do not understand the essence ofinjunctive relief, which generalizes the injunctive relief. Therefore, it is necessary toensure the restrict of injunctive relief from the aspect of system.Chapter1analyzes the current state of injunctive relief of Chinese patent right,proposes the current problems and disadvantages of application of injunctive relief inChina. Chapter2analyzes the restrict of injunctive relief from the aspect of theory,definites the quality of injunctive relief, and elaborates the theory foundation of patentright’s restrict of injunctive relief. Chapter3analyzes and compares American systemof injunctive relief, provides the restrict of injunctive relief with practice support.Chapter4proposes proposals to perfect the restrict theory of injunctive relief inChina.