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关于对诉前停止侵犯专利权行为适用法律问题的若干规定 Questions Concerning the Application of Law to Pre-litigation Injunctions to Cease Patent Infringement Activities Several Provisions

2006-05-13 16:14   我要纠错 | 打印 | 收藏 | | |

法释[2001]20号
(Promulgated by the Supreme People's Court on 7 June 2001 and effective as of 1 July 2001.)
颁布日期:20010607  实施日期:20010701  颁布单位:最高人民法院

  The following provisions on several questions concerning the application of law to pre-litigation injunctions to cease patent infringements have been formulated pursuant to the relevant provisions of the PRC, Civil Law General Principles, the PRC, Patent Law (the Patent Law) and the PRC, Civil Procedure Law (the Civil Procedure Law), in order to genuinely protect the lawful rights and interests of patentees and other interested parties.

  Article 1 Pursuant to Article 61 of the Patent Law, a patentee or interested party may apply to the people's court for a pre-litigation injunction against the respondent to cease his patent infringement.

  Interested parties that may apply include licencees under patent licensing contracts, lawful successors to patent property rights, etc. Among licencees under patent licensing contracts, those under exclusive licensing contracts may independently apply to people's courts whereas those under sole licensing contract may only apply if the patentee does not apply.

  Article 2 An application for a pre-litigation injunction to cease a patent infringement shall be submitted to a people's court with jurisdiction over patent infringement cases.

  Article 3 A patentee or interested party applying to the people's court shall submit a written application that shall specify such matters as the parties and their basic details, the specific content and scope of, and reasons for, the application, etc. The reasons for the application shall include a specific description of the damage to his lawful rights and interests that the applicant would incur, and that would be difficult to remedy, if the relevant act were not promptly halted.

  Article 4 When applying, the applicant shall submit the following evidence:

  1. If the applicant is the patentee, he shall submit documentation evidencing the authenticity and validity of his patent rights, including the patent certificate, claims, description and annual patent fee receipts; if the application concerns a utility model, the applicant shall submit the search report issued by the State Council's patent administration authority.

  2. If the applicant is an interested party, he shall submit the relevant patent licensing contract and the supporting materials placed on the record with the State Council's patent administration authority; if record filing has not been carried out, the interested party shall provide supporting documentation from the patentee or other evidence attesting that he has the patent rights.

  If the applicant is the licencee under a sole licensing contract and applies independently, he shall submit evidence that the patentee waived his right to apply.

  If the applicant is the successor to patent property rights, he shall submit evidence that he has succeeded or is in the process of succeeding to the rights.

  3. The applicant shall submit evidence that the respondent is infringing or about to infringe upon his patent rights, including the alleged infringing product and documentation comparing the characteristics of the patented technology and the technology of the alleged infringing product.

  Article 5 The matters ruled on by the people's court in issuing a pre-litigation injunction to cease a patent infringement shall be limited in scope to those for which the patentee or interested party made his application.

  Article 6 The applicant shall provide security at the time of application. If he fails to provide security, his application shall be dismissed.

  If the security provided in the form of a guarantee, mortgage, etc. by the party is reasonable and valid, the people's court shall admit the same.

  When determining the scope of the security, the people's court shall consider the sales revenue from, and reasonable costs for the storage, custody, etc. of the product concerned that would be involved in the event of issuance of an injunction to cease the relevant act; the losses and such reasonable costs and expenses as the wages of staff and workers that the respondent may incur from ceasing the relevant act; and other factors.

  Article 7 If in the course of enforcement of a ruling to cease the relevant act of infringement the respondent may incur greater losses as a result of such measures, the people's court may order the applicant to correspondingly increase his security. If the applicant fails to increase his security, the relevant measures taken to enforce cessation of the act shall be lifted.

  Article 8 The measures taken under a ruling to cease a patent infringement are not lifted by the provision of countersecurity by the respondent.

  Article 9 The people's court shall render a written ruling within 48 hours after it receives an application for an injunction to cease a patent infringement submitted by the patentee or an interested party and finds that such application complies with Article 4 hereof. If the ruling orders the respondent to cease the patent infringement, it shall be enforced immediately.

  If the people's court needs to verify relevant facts during the aforementioned period of time, it may summon one or both parties for an interview, after which it shall render its ruling in a timely manner.

  After ruling to impose a pre-litigation injunction requiring the respondent to cease the relevant act, the people's court shall notify the respondent in a timely manner and no later than within five days.

  Article 10 If either party is dissatisfied with the ruling, he may submit a one-time application for review within 10 days of the date of receipt of the ruling. The enforcement of the ruling shall not be suspended during the period of review.

  Article 11 When examining an application for review submitted by a party, the people's court shall consider the following:

  1. whether the act effected or about to be effected by the respondent constitutes patent infringement;

  2. whether refraining from taking the relevant measures would cause damage to the lawful rights and interests of the applicant that would be difficult to remedy;

  3. the provision of security by the applicant; and

  4. whether ordering the respondent to cease the relevant act would prejudice the public interest.

  Article 12 If the patentee or interested party fails to institute an action within 15 days after the people's court has taken measures to halt the relevant act, the people's court shall lift the measures it ruled be taken.

  Article 13 If the respondent incurs loss due to the applicant not instituting an action or due to the wrongfulness of the application, the respondent may institute an action with a competent people's court claiming compensation from the applicant or he may claim damages during the patent right infringement action instituted by the patentee or interested party, in which event the people's court may handle such claim together with the patent infringement action.

  Article 14 The effect of a ruling ordering the cessation of patent infringement shall in general last until the legal instrument of the court of last instance enters into effect. The people's court may also determine a specific period of effectiveness in view of the circumstances of the case. At the expiration of such period, a ruling ordering the continued cessation of the relevant act may be rendered on the basis of a petition by a party.

  Article 15 If the respondent violates the people's court's ruling ordering the cessation of the relevant act, the violation shall be handled in accordance with Article 102 of the Civil Procedure Law.

  Article 16 When enforcing a pre-litigation injunction to cease a patent infringement, the people's court may, based on the application of a party, additionally effect preservation of evidence with reference to Article 74 of the Civil Procedure Law.

  The people's court may, based on the application of a party, effect preservation of property pursuant to Articles 92 and 93 of the Civil Procedure Law.

  Article 17 If the patentee or interested party who institutes a patent infringement action with a people's court simultaneously files a petition for a preliminary injunction to cease the patent infringement, the people's court may render a preliminary ruling thereon.

  Article 18 The applicant in a case involving a pre-litigation injunction to cease a patent infringement shall pay costs in accordance with the Court Costs in People's Courts Procedures and the supplementary provisions thereto.

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