Research On The Preliminary Injunction System In Patent Litigation Of USA

In the field of intellectual property, particularly patents, the preliminary injunction systemis an important interim relief. It duly protects the legitimate interests of the right owner, in orderto avoid future irreparable damage, having an extraordinary effect. After hundreds of years ofdevelopment, preliminary injunction system in the advanced countries of Western capitalismhas been more perfect and complete. In order to join the World Trade Organization (WTO), thepreliminary injunction system was introduced into our country, under the background of theconsistency with international standards. Although there are certain effects in the temporaryprotection of intellectual property, but the whole system is still far from perfect stage.In this article, under the ways of combination theory with practice and comparativeanalysis, the author carries out a detail and deeply discussion on the application conditions ofthe preliminary injunction and the practice of patent litigation in the United States. Then, aftercomparison with the actual situation in China, the author raises some suggestions on improvingthe system of preliminary injunction system in China.The first part is the introduction of the American system of preliminary injunction,describing the concepts and features the preliminary injunction, making a summary on the basictheories such as the origin, the characteristics and types of the preliminary injunction, andrelated analysis focusing on the developments of the preliminary injunction system in patentinfringement litigation in the United States, and also its importance towards patent litigation,laying the foundation for the following specific research work..The second part discusses in depth the detail procedural elements in the application ofpreliminary injunction system in patent litigation in the United States, such as the hearingprocedures, guarantee ways, and relief procedures.The third part is the deeply research and analysis of the four substantive standards in thepractice of preliminary injunctions in U.S. patent litigation system, such as likelihood ofsuccess, irreparable harm, balance of hardship and the public interest, finding some usefulexperience toward the developments of the system in our country.In the fourth part, which is the main part of the article, the author indicates the detailproblems in our patent litigation preliminary injunction, analyzes the differences betweenpreliminary injunction with the traditional civil remedies, i.e. custody of property, advanceexecution and preservation of evidence, and also the differences between the preliminaryinjunction system in U.S. and in China. And, finally, the author present his personal views andraises some suggestive solutions towards the improvement of the said system in China, such as rational design of examination period, setting of a special examination department, introductionof hearing process, flexibility for guarantees ways, and improvement on the reconsiderationprocedures and specific substantive examination standards, such as " irreparable harm" and "the likelihood of success " and so on.