Research On The Application Of Intellectual Property Litigation Behavior Preservation In China

Intellectual property act preservation system is a special relief system,its function is to give the obligee advance protection.Since 2001,China joined the agreement on trade related intellectual property rights("trips"),in order to adapt to the pre litigation injunction system stipulated in Article 50,China has successively stipulated the behavior preservation system in substantive laws such as patent law,trademark law and copyright law,and at the same time,it also supplemented the application of the behavior preservation system of intellectual property through judicial interpretation.In order to unify the standards of the application of the behavior preservation system in practice and combine with many problems existing in the application of the behavior preservation of intellectual property in the past,on January 1,2019,the Supreme People's Court issued the provisions of the Supreme People's Court on several issues of the application of law in the examination of the behavior preservation cases of intellectual property disputes(hereinafter referred to as the judicial interpretation of behavior preservation),which stipulated the behavior preservation Considering the specific application of the whole system,the introduction of the judicial interpretation marks the further improvement of the behavior preservation system in China.The preservation of intellectual property behavior can avoid irreparable damage to the applicant due to the long litigation cycle,which makes the applicant unable to obtain timely relief.Because of its compulsory fight against infringement,it will attract some market operators who pursue interests to abuse their rights and cause irreparable damage to the applicant.Therefore,it is very important to study the application factors of intellectual property act preservation.In the judicial interpretation of act preservation,it lists the relevant factors that should be taken into account when granting the application of act preservation,and points out the direction for the judge to actually hear.However,there are still many problems in the application of intellectual property protection system.For example,before the promulgation of the judicial interpretation,there was a great controversy between the theoretical and practical circles about whether "the possibility of winning a lawsuit" should be applied to a higher standard or a lower standard.Although the promulgation of the judicial interpretation to a certain extent solved the application scale of "the possibility of winning a lawsuit",there werestill problems such as no clear provisions in the specific application.In the judicial interpretation of act preservation,"the possibility of winning a lawsuit" is changed to "whether there is a factual basis and legal basis,including whether the effectiveness of the intellectual property requested for protection is stable",which stipulates four considerations and a bottom line clause for the stability of the power basis.Let the judge have track to follow in the actual trial,but the listed cases are not enough to cover the diversity of the facts in practice,so there are still some difficulties in the actual trial."Irreparable damage" is also a controversial factor in the trial of action preservation application.Although there is no clear definition of "irreparable damage" in the judicial interpretation of action preservation,there are three situations that are regarded as "irreparable damage" and one clause that can be understated.Although these three situations to a large extent solve what kind of damage is irreparable damage,but also not completely solve the problem,not enough to meet the diversity of specific cases,the specific application of "irreparable damage" is still worth exploring.The judicial interpretation of action preservation stipulates the interests of both parties,and weighs the relationship between the damage caused to the legitimate rights and interests of the applicant by not taking action preservation measures and the damage caused to the respondent by taking action preservation action preservation measures.In addition,there are also provisions on the public interest.There are no detailed provisions on the specific application of the public interest.There are not many cases involving the public interest in judicial practice,but no case can infringe the public interest.In this paper,based on the framework of judicial interpretation of act preservation,referring to the previous laws and regulations,judicial interpretation,and so on,each part is interspersed with a large number of academic views,foreign experience and classic case analysis and display,to carry out specific analysis and Research on the intellectual property act preservation system.This paper is divided into eight parts: the first part is the history of intellectual property preservation.This paper introduces the relevant regulations of intellectual property act preservation in foreign countries,as well as the regulations of intellectual property act preservation in China.The second part mainly expounds the two sides ofthe intellectual property act preservation system.On the one hand,it introduces the necessity of protecting the legitimate rights of the obligee by the intellectual property act preservation system.On the other hand,it points out the characteristics of the restriction on the respondent due to the intellectual property act preservation,which attracts the market operators pursuing interests to apply for the act preservation maliciously,causes damage to the respondent and disturbs the market order.This leads to the following several parts of the application of the behavior preservation system considerations.The third part is the introduction of the actual basis and legal basis of the applicant.Combined with judicial interpretation,classic cases and foreign experience,this paper discusses.The fourth part is the focus of this paper-irreparable damage.Around the "judicial interpretation of act preservation," the provisions of the four cases identified as irreparable damage were discussed.The fifth part is the measurement of the interests of both sides.When measuring the interests of both parties,we should consider the degree of damage to the respondent and whether the respondent has subjective intention.The sixth part is the consideration of public interest,weighing the relationship between personal interest and public interest.The seventh part mainly introduces the cognizance and remedy of the mistake in the application of act preservation.The last part is the conclusion.The main research methods of this paper are historical analysis,text analysis,comparative analysis,case analysis and general induction.