On The System Of Temporary Injunction In Patent Infringement Litigation

The provisional measure or temporary injunction system was established beforeChina's entry into WTO to satisfy the requirements of the Agreement onTrade-Related Aspects of Intellectual Property Rights (TRIPS). At its initial stage,this new system needs to be improved in many aspects. This paper is intended tointroduce and compare the temporary injunction systems in patent litigation in theUnited States and China and applicable provisions of TRIPS so as to introduce thehistory and development, explore the standards for granting injunctions as well asapplicable procedural rules, and discuss the corresponding legal problems in judicialpractice in China. In author's opinion, first, it is necessary to clarify and specifysome important rules of temporary injunction in patent litigation in Chinese laws,such as the application of the standards for granting injunctions, the method andamount of the guarantee for injunctions and the compensation for the erroneousinjunction. Second, some provisions are not so practicable, for example, the courtsare required to grant or deny the temporary injunction within 48 hours after acceptingthe injunction application, which gives courts insufficient time to examine the validityof patents, likelihood of infringement, irreparable harm as well as the amount of thebond. Impracticability in procedural rules is likely to hinder the application of thesubstantive standards for granting the injunction, therefore, it is essential to amendand improve the applicable laws and rules based on judicial practices. Third, sinceprocedural frameworks of the injunctive relief vary by country, when learning ortransplanting the practice of a foreign country, for example, introducing thepreliminary hearing for the trial of temporary injunction, we need to address theproblem as how to adapt the system to the current Chinese civil procedural laws so asto regulate the operation and clarify the effectiveness of the introduced system. Lastbut not least, it is important to collect and sort out cases and require courts, in grantingor refusing preliminary injunctions, to set forth the findings of fact and conclusions oflaw that constitute the grounds of its action. And this requirement will actively helpto regulate the judicial practice of temporary injunctions in patent infringement cases.