Study On Examine Elements Of The Intellectual Property Act Preservation

Act preservation is a temporary measure to order the respondent to perform certain actions or to prohibit him from doing certain actions before a civil lawsuit or arbitral award comes into effect,in order to avoid irreparable damage to the interests of the applicant,or to ensure the smooth implementation of legal judgments or rulings that will go into effect in the future.As a temporary remedy,act preservation can prevent the infringement from occurring or continuing,and avoid causing irreparable damage to the applicant.China’s act preservation system first appeared in the intellectual property laws.However,due to the slow development and imperfect laws,the courts lacks clear guidelines,uniform examination standards and method.In December 2018,the Supreme People’s Court issued a new judicial interpretation which refined a set of procedural rules and substantial rules(shorted as “judicial interpretation” below).It provides more detailed regulations on act preservation examination standards in intellectual property disputes.This article analyzes the elements of the act preservation examination stipulated in Article 7 and attempts to provide opinions and suggestions for the understanding and application of the examination elements in judicial practice.The first part of this article introduced the basic concepts and features of intellectual property act preservation,and then points out the legislative environment of China’s intellectual property act preservation system.Finally puts forward the problems in the practice of the law.It includes three main problems: the connotation and standard of "factual and legal basis" are not clear,the way of “measurement of interest”is too simple,and lack methods for comprehensive measurement.The second part clarifies the meanings,measurement methods and standards of each element through in-depth research and analysis of the four examination elements stipulated in Article 7 of the judicial interpretation.This part also reviews the examination standards in China’s judicial practice through analysis of some judicial cases.The third part first briefly introduces the interlocutory injunction system in the US,then focusing on the analysis of the four elements of the US interlocutory injunction and its measurement methods.China’s act preservation system was made with reference to the US interlocutory injunction.The theory and jurisprudence of the US interlocutory injunction system are quite systematic,which has high reference value for China.Based on China’s law system and practice,and specific problems in the examination of IP act preservation,learning from the theory and judicial experience in the US,the fourth part put forward suggestion for the practice of IP act preservation in China.