Research On The Examination Of Behavior Preservation In The Civil Action Of Intellectual Property

Since China's civil procedure law introduced the act preservation system,the application and review of the act preservation system has been widely concerned because of its uncertainty.In the intellectual property litigation,due to the traditional litigation mode in the relief,there is a real need to protect this kind of temporary protection measures through intellectual property behavior because it can not give effective relief to the legitimate right holders whose rights have been infringed in time.The earliest provision of Interim Measures of protection in China's legislation was seen in the amendment of the patent law in 2001.This provision is considered as the symbol of the emergence of the interim prohibition system of intellectual property rights in China.In 2002,China began to explore the application of temporary injunction system,and accumulated corresponding judicial experience in the field of traditional intellectual property.After the formal introduction of the act preservation system in the civil procedure law in 2012,there have been many difficulties and disputes about the nature of act preservation and its review standards in the field of intellectual property,which need to be clarified and further studied.Starting from the establishment and evolution of the intellectual property act preservation system in China,this paper analyzes the crux of the application of the examination standard of act preservation in judicial practice,and then reflects on its causes,and then puts forward suggestions for the improvement of the application standard.The full text mainly analyzes from four parts: the first part,through combing the origin of our country's behavior preservation system and the role it plays in the protection of intellectual property,clear the system blueprint of our country's behavior preservation system and the review standard in the field of intellectual property litigation.The second part analyzes the progress and limitations of the review standards in the act preservation provisions,which clarifies the review factors of the necessity of the review standards,and enumerates some specific application situations considering the needs of the specific review standards in practice.At the same time,there are gaps in the standards of proof,the principle of interest balance and the judgment of irreparable damage.In the third part,the author analyzes the qualitative differences between the prohibition system and the behavior preservation system,and reflects on the causes of the dilemma of the application of the behavior preservation examination standard in practice.The fourth part,combined with the analysis of the examination standard,gives suggestions on how to improve theexamination standard in intellectual property litigation.In terms of the review standard,the difficulty of the review of the substantive issues involved is reduced;in terms of the procedure,the part of the absence of the procedure is specified in detail.