| English legal saying proclaims: "No remedies,no rights".The relief measures after the establishment of rights have always been an important research issue.The patent right shall have the right of exclusive and exclusive,in order to protect the lawful rights and interests the patentee can be realized,relief measures is particularly important,especially stopping encroaching.Compared with the compensation for damages,stopping encroaching can directly and effectively to stop the infringing act,in order to prevent further damage,and better protect the interests of the patentee.Based on the exclusive nature of patent rights and the purpose of protecting the realization of rights,courts usually take measures to stop infringement to provide relief,forming a phenomenon of "it is natural to stop infringement".However,due to the influx of new cases such as damages to public interests,judicial practice has a new understanding of the stop infringement relief system,and in actual cases,there were judgments restricting the relief of stopping encroaching.Subsequently,the legislative documents also responded to this question.The judicial interpretation of the patent law(II)provides the situation of restricting the relief of stopping encroaching in detail,which changes the broken and groundless phenomenon in judicial practice and makes a milestone contribution to the system of limiting remedy of patent stop infringement in China.Though,the judicial interpretation of the patent law(II)provides limitation of patent infringement remedies,however,by comparing the evolution of before and after legislative view,as well as the judicial precedents after the promulgation of the judicial interpretation of the patent law(II),from which can be obviously found that opinions about the interests of the parties has changed,the original provisions can be based on the imbalance of interests of the parties without order to stop the infringement,but the provision was finally deleted.However,after the legislative document deleted the provision,the judicial judgment still considered the factor,there is a discrepancy between legislation and judicature.In addition,the author also found that the application of reasonable costs as an alternative measure also has problems.Judicial practice will mix reasonable costs with damages and calculate them together.In view of the above problems,the author believes that deleting the provision of not ordering to stop infringement based on the imbalance of the interests of the parties is not in line with the actual needs of judicial practice,so the author suggests adding the provision again.In this regard,the author points out the specific circumstances and exceptions of the imbalance of the interests of the parties by studying the relevant cases abroad.In addition,it also puts forward relevant legislative opinions on the application of reasonable expenses.The body of this article is divided into three chapters:The first chapter firstly introduces the legislative and judicial status of the limitation system of patent stop infringement relief in China.In view of the limitation problem of patent stop infringement relief,the judicial interpretation of the patent law(II)only stipulates three types.However,in addition to considering the above types,judicial practice will also measure the interests of the parties.As for the inconsistency between judicial practice and legislation,the author finds a problem.The legislation lacks the situation that if the parties’ interests are out of balance and the infringement is not ordered to stop,which seems to be unable to meet the actual needs of judicial practice.In addition,the author also states the problems in the application of alternative measures,that is,the application of reasonable costs is chaotic and improper.The second chapter mainly studies the patent permanent injunction system in the United States.Firstly,it expounds the development and changes of the applicable rules of the patent permanent injunction in the United States,from the general rules to the four factor test of equity,and the patent permanent injunction breaks the situation of ex officio issuance in the past.Secondly,as one of the four factors of equity,it analyzes how the United States courts use this factor in actual cases Finally,through the study of the application rules of patent permanent injunction in the United States,we can draw lessons from it,that is,the interests of parties should be considered in the relief of patent stop infringement,and the relief of patent stop infringement should be applied flexibly.The third chapter is the proposal about how to improve the relief system of patent stop infringement in China.First,we need to add the factors of the imbalance of the interests of parties,and distinguish different imbalance situations.We can take the way of not ordering to stop the infringement immediately or not ordering to stop the infringement.Second,the author thinks that the imbalance of the interests of parties mainly includes two specific situations: one is that the accused infringer is a bona fide user;the other is the partial infringement of integrated products.Third,it proposes that the patentee’s request for cessation of infringement should be supported under specific circumstances,under specific circumstances,mainly in the following two situations: first,the accused infringer intentionally infringes;second,the accused infringing product has a competitive relationship with the patent involved.Fourth,the reasonable cost can be determined by the prior consultation mechanism of both parties,and the reasonable cost and damage compensation can be calculated separately.Furthermore,the author also states briefly the elements that should be considered when calculating the reasonable cost. |
