Research On The Protection System Of Intellectual Property Litigation

The act preservation system can be traced back to the writ of prohibition in ancient Roman law,which is manifested as "injunction system" and "false disposition system" in common law system and civil law system respectively.When our country joined the WTO,it followed the trend of times to join the pre-lawsuit injunction in the field of intellectual property rights,so the intellectual property litigation behavior preservation system began to be established gradually,and now a complete framework has been formed.As an effective procedure to stop tort relief,act preservation makes up for the deficiency of traditional litigation time limit.Especially in the field of intellectual property,the trend of development and application is rolling forward.But in fact,the current legislative system is not perfect and the judicial application is not uniform problems are more prominent,can not fully realize the system function.So it is of great theoretical and practical significance to study this system.From the perspective of institutional theory,this paper firstly analyzes the concept of the legal action preservation system of intellectual property rights and the characteristics of the existing system,analyzes the unique function and particularity of the legal action preservation system in the field of intellectual property rights,and determines the necessity of the research on this subject.Then,the author analyzes the judicial status quo of intellectual property litigation preservation system and discusses the specific situations in judicial practice based on data report and relevant cases,which finds that the licensee’s application right of intellectual property contract is not guaranteed,and the subject of initiation procedure is not comprehensive;In the examination criteria of behavior preservation,the examination elements,especially the specific standards of "probability of success" and "irreparable damage",are unclear,and the adoption of standards is not uniform,leading to judicial chaos.The scope and method of guarantee are unclear;The judicial relief provisions are not perfect when preserving mistakes,and the reconsideration procedure is fictitious.This paper summarizes the problems highlighted by the behavior preservation system in the field of intellectual property rights,analyzes its various causes,and seeks for corresponding countermeasures to give suggestions for improvement: adding the licensee as the subject of behavior preservation and clarifying the court’s interpretation obligation;This paper puts forward the idea of setting up special institutions for examination,analyzes the actual specific rules of legislative orientation and examination standards in authoritative typical cases,and interprets the current judicial policies from the perspective of functionalism,clarifying the burden of proof and the standard of proof.Flexible determination of guarantee scope and innovation of a variety of guarantee methods;The punitive damages system should be introduced into the enforcement and relief procedures to effectively curb the abuse of act preservation and realize the effective connection between legislation and justice,so as to give full play to the greater value of act preservation system in the field of intellectual property and to give full play to the role of act preservation system in stopping infringement and protecting intellectual property rights.