Study On Substantial Elements Of The Intellectual Property Act Preservation

As a special remedy, act preservation can promptly stop infringement and prevent the legitimate rights from irreparable damage. There are no unified standard and specific substantial elements in our juridical practice due to the hysteretic and slow development of the legal system for intellectual property act preservation, which leads to the confusion in the act preservation examination. The Supreme People’s Court released a draft of Interpretation of the Supreme People’s Court on the Application of Law for Act Preservation of Intellectual Property and Competition Dispute in February 2015. The draft stipulates the specific substantial elements of the intellectual property act preservation, but it still needs to be improved and ameliorated.Based on the legislative goal of act preservation, analyze the necessity and important value of act preservation of intellectual property by integrating theory with practice and using the comparative method. Point out the extant question and causes in current judicial practice and propose the suggestion of improving them on the base of learning foreign experiences.The first part starts with the legislative intent of the act preservation system, and intends to clarify its unusual role as a special remedy for the preservation of intellectual property rights. This part also reviews the evolution for the development of IP act preservation System in China, as well as summarizes and analyzes the important issues existing in the current judicial practice in China.The second part focuses on the important provisions of examination elements for the necessity of act preservation, which is put forward by the Supreme Court judicial interpretation(Draft). Although the new Supreme Court judicial interpretation(Draft) plays an important role upon the IP act preservation System in China, this part indicate the issues that still needed to be improved for these provisions.The third part clarifies the substantial connotation and development condition of the four elements referenced in the Draft by in-depth study and analysis of the four elements in foreign injunction judicial systems, so as to be used for reference during the legislation and judicature in China.Based on the specific dilemma about the substantial examination of act preservation in China, the fourth part put forward suggestion for the amendment and perfection of IP act preservation in China by means of combining with the judicial experience in foreign countries.