A Study On The Issuance And Cross-Border Enforcement Of Permanent Patent Injunction

Permanent injunction is an important remedy to give patent holders exclusive protection in patent infringement cases,preventing future re-infringement of rights by ordering the infringer to do or not to do specific acts.With the development of international trade,the popularization of computers and the wide application of the Internet,cases of cross-border patent infringement continue to emerge.Correspondingly,the legal issues of cross-border application of permanent injunctions have begun to come into people’s field of vision.Adopting comparative and empirical research methods,the author tries to systematically outline the latest situation of the cross-border application of patent permanent injunctions,based on government or international organization documents,national laws and regulations,judicial precedents,domestic and foreign books and literatures.The issuance of permanent injunctions,different from other injunctive forms such as interim injunctions and anti-suit injunctions,is based on the substantive review of the subject litigation by the court,which is intended to prevent the infringer from toting the rights again in the future.The statutory issuance rules of permanent patent injunctions in various countries mainly adopt the legislative technique of general authorization and special requirements,first granting the court the right to issue permanent injunctions in a general manner,and then forming a relatively brief permanent injunction issuance rule by adding conditions such as restrictions on the objects of issuance,restrictions on specific periods,requirements for marking and noticing,and requirements for equitable analysis of infringement consequences.In judicial practice,the specific issuance requirements are mainly developed through case law.A comprehensive analysis of the case law rules on the issuance of permanent injunctions in the United States,the United Kingdom and the European Union can be broadly summarized as follows: irreparable damages suffered by the patentee,insufficient damages to compensate for the loss,equitable analysis of hardships for both parties,and non-harm to the public interest.Regarding the cross-border recognition and enforcement of permanent injunctions,the domestic laws of most countries have not yet clearly stipulated this issue.EU countries generally follow the rules of the Brussels Regulation(Revised Edition).there are currently one Convention and three model laws worldwide,namely the Convention of Choice of Court Agreement,the ALI Principles,the CLIP Principles and the KoreanJapanese Principles of Private International Law on Intellectual Property Rights.In practice,it also raises the problems such as violation of the sovereignty of foreign countries,huge relief time gap between the original trial country and the enforcement country,delay or even failure of the enforcement with the “design-around” defense put forward by the infringers.In contrast,the alternative measures of permanent injunction,the damages and ongoing royalties,with their nature of money judgement,are easier to recognize and enforce.Cessation of infringement,similar to permanent injunction,is the method of China’s patent protection system.However,due to the differences in the legal background,nature,promulgation conditions,and validity period of the two systems,there are significant differences between the two systems.Although the current cessation of infringement system has problems such as scattered rules and low levels,and the content is not specific enough,considering the differences in traditional legal systems between China and common law countries and the fact that the cessation of infringement system can achieve similar effects of protecting patents and promoting innovation,China does not need to introduce the permanent patent injunction system,but only needs to learn from it to improve the cessation of infringement rules.For instance,stipulating cessation of patent infringement in higher-rank laws,specifying applicable standards,and establishing effective execution system.For the recognition and enforcement of foreign patents,China can cautiously recognize on the basis of legal reciprocity,making use of bilateral and regional international treaties to formulate permanent injunction rules on cross-border recognition and enforcement.Lastly,Chinese enterprises,according to their roles of litigation,could flexibly choose tactics,which include filing a lawsuit in possible enforcement court,forum rei court or property locating court,making the infringers of the court state as co-defendants,properly using anti-suit injunctions and administrative means,instituting counterclaims,antitrust defense,and “design-around” defense,to protect their interests.