Research On The Restriction Of Issuing Of Permanent Injunction For Patent Infringement In The U.S.

With the development of science and technology, compared patent rights with the traditional civil rights such as property rights, creditor’s rights, personal rights and so on, there become a big difference. It often involves others’ interests and the public interest, and has a relation to national economic development entities and the implementation of the efficiency of industrial inventions rather than individual self-interest. Thus, we should face up to this distinction and deny the "certainly applies theory" on stopping infringement. Since April 1, 2016, implementation of Patent law judicial interpretation(b) Article 26 also made clear that the court can not stop patent infringement judgment for the first time.However, both of the existing judicial practice and Patent law judicial interpretation(b) of the relevant provisions, the denial of a request to stop the infringement is single, general and vague, and alternative compensation to the patent holder is also a lack of a clear approach, these two problems will ultimately hinder patent infringement judgment does not stop to realize.At the Millennium turn of the century, in order to solve the increasingly serious problem of "patent thickets" and "patent trolls", the United States made a policy adjustment to the relief for patent infringement which changed a long-standing policy of "automatic ban rules" as an opportunity of e Bay case.Besides the "permanent injunction" of United States Patent Law is the same as the "cease and desist" of China’s patent law. The "patent thicket" as an inevitable result of the sharp increase in the number of patents, it should not be unique to the United States, but the development of the patent system to a certain stage of the inevitable product and the United States first faced it only.Therefore, the practice of American courts on the issue of a permanent injunction can be the model for our country.With the research on application of the four elements test and the determination of sustainable franchise mode in the United States judicial practice, the author sum up the US courts’ experiences and practices in dealing with these two issues in cases related, and put forward some recommendations to improve judicial practice for China: on the one hand, in considering of whether to restrict the request to stop the infringement of patent holders, the court should combine the alleged patent with the industry involved in to determine circumstances of the case, and consider the relationship between the parties, market factors, the specific situation of the plaintiff and the defendant, the public interest and other factors to avoid across the board; on the other hand, in case of denying to stop the infringement claims, the court should build a reasonable alternative compensation mechanism to compensate the patent righter.