The Application And Improve Of Patent Infringement Lawsuit Against The BAN

With the development of knowledge economy, the competition between countries has been from the hard power to soft power competition, in the innovative national science and technology, of the growing importance of the patent right.Today’s China, at the same time of improving science and technology strength, also want to focus on how to timely and effective to protect the innovative products, the legal system should be more complete, nip in the bud, the maximum protection of patent right in China.In the patent law in our country, the ban and property preservation before litigation, advance execution is procedural, temporary relief measures, closely linked to each other.However, relative to other two kinds of relief measures, ban before litigation theory research is not enough thorough, there are many deficiencies need to improve.At the same time, in the concrete judicial practice, because of the patent system’s research in China is still in its infancy, a lot of content is lack of support in theory, in practice the standard also is uneven, more rely on the discretion of the judge is complete, lead to more disputes arise.In order to solve these problems, is our country patent system to be more perfect, this article carried out the following research.The first part:first of all, the basic theory of analysis before litigation ban.Explained the meaning of the ban, the classification and the suitable principle, with clear characteristics of ban system in our country, on the basis of the derivation of the ban, in our country’s patent infringement for after laid the necessary theoretical basis, and to ban before litigation and other temporary relief measures to distinguish it. The United States and Japan about two countries ban before litigation legislation and case, clarify its disadvantages, combining our country concrete national condition, cause before litigation ban a thinking to our country.The second part:according to our country’s ban before litigation legislation present situation, from the aspects of the applicant, the court review, the respondent three analysis of deficiencies in practice, combined with relevant cases, find the root cause of the phenomenon after, to carry on the reasonable analysis and suit the remedy to the case.The third part:follow the principle of due and combining the domestic judicial practice, in view of the existing problems, and improve on the applicable ban before litigation of patent infringement litigation in our country, and put forward Suggestions, targeted under the new Angle of view explanation before litigation of patent infringement.