Research On The Application Of Injunction Liability In Patent Infringement

Patent is a system which adds benefit of oil to the fire of genius is an engine to innovation of technology and development of society. The more significance of patent to the public, enterprise and nation, the more urgent in protection of patent right and improvement of patent system. As it says, no relief no right, the most direct and valid of protecting patent is the relief system. In China,the injunction as one of the strongest relies, it can find favor in patentee’s and judicial authority’s eye in patent litigation, that is why our judicial situation is formed. Once the infringement is defined, the injunction applies. However, the large scale of the application contributes to a series of problems which are alarm to us. Fortunately,there were some cases without application of injunction in our judicial practice though there were truly patent infringement. With the drive of judicial practice,the Interpretation on Some Issue Concerning the Application of the Laws to the Patent Infringement of Disputes 2 emerges at a historical moment. The twenty---six article says, the court could give no liability on defendant of injunction and pay reasonable royalty when concerning the public interest and national interest. But the content of the article is abstract, the concrete understanding and application is full of realistic meaning. So the paper is in the view of article 26 in the Interpretation of the Patent 2 to explore the application of injunction in patent infringement. At first, with the supporting theoretical knowledge to understand the current situation and problems of application of injunction. Second, starting with American judicial practice, to get deep into the issue of injunction liability exclusions and alternative way in patent infringement. Finally, put forward a sound proposal to the application of injunction China’s patent infringement litigation to a better play its judicial practice value.This paper centered on the application of injunction in patent infringement, including three parts: introduction, body and conclusion. Wherein the body part has three chapters, according to ask question, analyze question and solve question in a logical order of the writing.The first section of the first chapter is to summary and analyze through the existing academic viewpoints, summarize the intension of the injunction in the patent infringement litigation, and try to make a horizontal comparison between the injunction liability and damage liabilities in order to sum up the characteristics of the injunction liability and its special feature when it applies as a relief in patent infringement. In addition, by analyzing the nature of each patent infringement, the impact to patents resulting from each patent infringement and related defense factors, it is a try to the typical analysis of the injunction. Second section is to analysis of the current situation and the problems of the application of the injunction. Through longitudinal way of comparison of the case collected to get a generalization application of the injunction relief, and reveal the defects which contributes to unfair competition and by increasing social innovation costs. Section three of this chapter will analyze and summarize the cases that without application of the injunction relief for public interest in patent infringements, and sum up wisdom in dealing with patents and public interest in China’s patent judicial practice,and throw out the key problems in article 26 of the Interpretation of the Patent 2.The second chapter is mainly with the investigation of American judicial practice to get deep into the issue of injunction liability exclusions and alternative way in patent infringement. The first section is the investigation of the U.S. Patent Litigation permanent injunction and sort out the development of permanent injunction from the generalization application to the strictly abide by the principle of the of four elements, and get to grasp the specific application of the four elements principle of permanent injunction though sorts of cases. Second section looks at the definition of a reasonable royalty, make a clear of its nature of liability,and sum up all the considerations in deciding a reasonable license royalty. Chapter three is all the summary we can learn from the U.S. Patent Litigation permanent injunction practice.The third chapter is focus on the two aspects to the better application of the injunction in patent infringement. The first section clarify the principles of injunction liability which is the principle of balance of interests, it do effective in the process of patent litigation. Patentee may demand according to their strategic considerations to decide whether to request the infringer to bear injunction liability. The balance of interests as a cornerstone of intellectual property law which is a constraint and equitable spiritual impact on patent protection and use. For the second section are responses to the remaining core issues in article 26 of the Interpretation of the Patent 2:a clear connotation of public interest from the connotation and denotation; summarizes the other circumstances of no application of injunction liability; clear the nature of the reasonable costs and put forward relevant considerations.