An Empirical Study On The Rules Of Conduct Preservation In Patent Litigation

With the development of intellectual property,the forms of infringement methods emerge in endlessly,and the number of major and difficult cases is increasing,resulting in an increase in the length of patent litigation.The lag of litigation relief means,the professional demand for theoretical knowledge in paten t cases and the insufficient supply of judicial resources lead to a large gap between th e actual effect of intellectual property protection(especially in the field of patent)and the expectation of the patentee.In this regard,the legislation hopes to help the patentee to solve the practical problems such as the long cycle of civil litiga tion and the delay of right remedy through the conduct preservation system.However,its effect in judicial practice does not conform to the original intention stipulat ed in the ’ TRIPS Agreement ’.Excessive requirements and unclear review elements lead t o the oblige ’s flinch in seeking rights remedy,which requires us to make timely changes.Combined with the correlation analysis of the 67 samples of valid orders on c onduct preservation of patent obtained after screening,the results show that the possib ility of infringement,irreparable damage,hearing procedure,applicant type,guarantee and other factors are significantly correlated with the preservation results.At the same time,combined with judicial cases and theory,it is found that the standard o f proof of substantive review elements is too high,the guarantee mode is chaotic and there are loopholes in the hearing procedure.Therefore,it is necessary to furthe r reduce the standard of proof of substantive elements of conduct preservation in existing legal norms;form a guarantee model based on the amount of guarantee negotiated by the parties,supplemented by the judge’s ruling in special circumstances,and allo w the appropriate application of counter-guarantee in patent contract disputes;Add supplementary hearing procedures in emergency situations and supplement the hearing forms applicable to oral debate in general situations.