US Permanent Injunction And China's Cession Of Infringement In Patent Litigation:A Comparative Study

The United States is known for its strong remedies against patent infringement.Permanent injunction,as a kind of remedy,is often used in American patent infringement cases.In the process of application of the Permanent Injunction,there is a trial idea of General Rule that “once infringement,permanent injunction can be issued”,which obviously violates the Principle of Equity.With the increasing of the phenomenon of “Patent Trolls” and “Patent Jungle” in the United States,the country tried to reform the system,eBay case is a typical case in the process of patent system reform in the United States.On the one hand,the U.S.government has amended the Patent Act,on the other hand,it has changed the court's practice in the case through precedent.In the eBay case,Supreme Court of the United States proposed that the Four Factors Test includes Irreparable Injury,Inadequacy of Money Damages,Balance of Hardships between the Complainant and the Respondent and Publish Interest,which be used to determine whether to issue a permanent injunction.After eBay case,the district courts applied the standard of Four Factors Test in patent cases.Different from the General Rule,the Four Factors Test adds various restrictions on the promulgation of permanent injunction in patent cases,requiring judges to consider the whole case and the interests of both parties,so as to make it more in line with the Principle of Equity pursued by the United States judiciary.There is no Permanent Injunction System in China,but in patent cases,the system similar to the Permanent Injunction System is Cession of Infringement.Throughout the judicial decisions in patent cases in China,once the infringer's behavior is confirmed as infringement,the court usually takes cession of infringement as the most direct way of relief,which is very similar to the idea of General Rule in the United States.With reference to the legislative process of the United States,there is still room for the development of China's patent law,so it is imperative to add some restrictive factors to cession of infringement.After introducing the restrictive factors of the Permanent Injunction System inthe Four Factors Test of the United States,the author analyzes the provisions of the patent system of our country on the cession of infringement and summarizes the relevant judicial cases at this stage.Referring to the judicial experience of the United States and the actual situation in China,the author puts forward relevant suggestions for improvement.The author believes that the application of the cession of infringement can follow the Permanent Injunction System of the United States,and establish the principle of the application of the liability for cession of infringement-the Principle of Interest Balance.At the same time,in view of the current laws and regulations and judicial interpretation in China,the author suggests that the future legislation can focus on the Public Interest,Reasonable Costs.