Research On Prelitigation Behavior Preservation Of Intellectual Property Rights

China’s intellectual property act preservation system is still in the stage to be tested and perfected.Although the civil procedure law,the Supreme People’s Court about censorship cases related to intellectual property disputes act preservation provisions on some issues of applicable law as the core of the current specification,has been started before litigation of intellectual property rights behavior preservation,examination standards,such as relief program to make the rules,but the specification is not fully meet the needs of judicial practice.Existing studies tend to focus on the introduction of theories and extraterritorial systems,while the difficulties of prelitigation act preservation of intellectual property rights tend to focus on practical operation.Therefore,based on the current legal basis of Our country,it is necessary to find out the existing problems of the act preservation from judicial cases and to extract the operation rules suitable for the local color of China.In terms of initiating procedural rules,the court can initiate the preservation procedure only when it is "necessary";The independent value of hearing procedure should be affirmed,and diversified and flexible hearing methods should be adopted under the condition of"emergency",so as to give consideration to efficiency and justice.Correctly understanding that "urgency of situation" is not the substantive requirement of prelitigation preservation of intellectual property rights;An applicant’s sponsorship greatly enhances the likelihood of admissibility of a determination,but is not a substitute for substantive standard review.In terms of substantive review criteria,the "four criteria" established in China’s normative system are different from the "necessary" criteria in the Anglo-American law system,and are the "comprehensive consideration" of the four criteria.Among them,"fact-based legal basis" is different from the "possibility of appeal" standard in the United States,and "stability of rights" can only be applied to intellectual property rights that have been substantially examined.The general judgment standard of "irreparable loss" should be introduced,and it should be further divided into general and specific judgment standards in specific application.The specific criteria should be divided into three categories:personal rights and interests,behaviors that are difficult to control,and significantly reduced market share.The balance of interests of both parties should consider the impact of the ruling on the respondent,while the subjective fault of the respondent can only be considered as an auxiliary factor.The review of the public interest standard needs to be rigorous,and only in special areas and special circumstances can the equal status of the two sides be broken through.In terms of relief procedure rules,relief can be divided into the relief of the applicant and the relief of the respondent,which should focus on the relief of the respondent.The principle of no fault shall be applied to the compensation for the loss caused by the error of the application for conduct preservation,and the burden of proof shall be borne by the respondent in the scope of compensation,and the focus of the examination lies in the causal relationship between the application and the loss.In the reconsideration procedure,the path of reconsideration by the original court once,reconsideration by a higher court again and a final decision shall be explored.Specifically,a new collegial panel shall be formed to hear the case or a judicial committee shall be formed to handle the case.The specific contents of the review focus on the possibility of tort,difficult to make up for the loss,guarantee,public interest four aspects.