Research On Restrictions Of Cessation Of Infringement In Patent Infringement Litigation

In patent infringement litigation,the cessation of infringement refers to the remedy generally applicable in the case that there is an infringement fact.However,this practice has not adapted to the reality of rapid economic,social and scientific and technological development,and may damage the competition order and the public interest,so it is necessary to restrict it.Cessation of infringement is not only claim on absolute right,but also the way to bear civil liability.The rationality of restriction can be explained by the theory of additions and the theory of law and economics.China’s current patent law does not specifically stipulate restrictions on the cessation of infringement relief.The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases of Patent Infringement(II),which was promulgated in 2016,provides for the standard in principle.In the case of patent infringement litigation,good faith use,and public interest considerations,the court may not order the infringer to stop the infringement,but its specific applicable conditions need to be further clarified.In terms of the specific applicable conditions for the restrictions of cessation of infringement,combined with relevant theories and typical cases in practice,for standard essential patent infringement lawsuits,if the patentee makes a “fair,reasonable,nondiscriminatory”(FRAND)license commitment,it is also necessary to consider whether the patentee violates the FRAND license commitment,whether the accused infringer has obvious fault and whether to pay the license fee.In the case of good faith use of infringing products,the application of restricting the cessation of infringement relief shall be in accordance with the principle of fairness and the user’s weak position.When applicable,the goodwill of the user of the infringing product shall be considered,whether the legal source of the product can be proved,whether a reasonable consideration has been paid,whether to respond to infringement notice in time.The scope of public interest includes social public health,social resources,public order,ecological environment,etc.When it comes to public interest,it should consider the existence of clear public interests,the public interest is quite damaged,and the infringer needs to pay corresponding reasonable expenses.