Study On The Substantial Elements Of The Intellectual Property Litigation Act Preservation

Intellectual property litigation act preservation as a remedy,which is able to stop effectively intellectual property infringement.However,it has not played its role in the judicial practice in our country.The author believes that it is necessary to conduct research on the substantive elements for the preservation of intellectual property litigation,in order to more operate.Being based on the legislative goal of act preservation,the author analyze the necessity and important value of act preservation of intellectual property and points out the extant question in current legislative regulation,such as:legislative regulations about elements of “irreparable damage”are abbreviated.Judgment criteria of “the likelihood of success” are not clear.The element balance the hardship of two parties lacks legal provisions.The element of“public interest”lacks clear guidelines,substantive elements review in confusion in judicial practice.On the base of learning foreign experiences,in the form of judicial interpretation,which establishes the core elements of “irreparable damage” and the system of substantive examination requirements of “the likelihood of success”,“balance the hardship of two parties” and “public interest” as supporting requirements,and establishing a measurement model combines the function of “litigation preservation”.Specific requirements are:establishing connotation of “irreparable damage” abandons the absolute definition,flexible use of the anti-proportional principle;Confirming“the likelihood of success” differentiates degree,when proving the validity and stability of rights,learn from the rule “validity of previous rule”and “default rule”.From factors of market size,subjective vicious,the use of intellectual property by both parties to balance the hardship of two parties.At the same time,public welfare and social development cannot be ignored,taking into account the public interest.Internal interactions exist between various elements,elasticizing in a reasonable range.