Pre-litigation injunction is based on the applicant's unilateral application without trial procedure, so it must be strictly limited. This is also an inevitable requirement to prevent the parties from abusing public resources such as judicial protection.
Article 66 of China's Patent Law gives Chinese and foreign patentees and relevant interested parties the relief means to order the infringer to stop relevant acts in case of emergency before formal prosecution. This is what the industry often calls a "temporary injunction".
It should be pointed out that although there is no necessary procedure for the parties to cross-examine the evidence in the process of pre-litigation injunction, when determining the validity of the evidence submitted by the applicant, the court should conduct a preliminary review of the authenticity and relevance of the evidence according to its functions and powers, and reasonably determine the validity of the evidence. It is not possible to accept the evidence submitted by the applicant without review because the pre-litigation injunction is based on a unilateral application.
According to the provisions of relevant laws and judicial interpretations in China, the application of pre-litigation injunction in judicial practice at present generally requires substantive examination of the following four elements:
(1) Whether the behavior that the respondent is implementing or about to implement constitutes an infringement of intellectual property rights;
(two) whether the failure to take relevant measures will cause irreparable damage to the legitimate rights and interests of the applicant;
(3) the guarantee provided by the applicant;
(four) whether the ban will harm the public interest.
The applicant shall provide documents to prove the authenticity and validity of his patent right, including: patent certificate, patent claim, specification, attached drawings, proof of annual patent fee payment (if the applicant is an interested party, evidence proving that he is a legal interested party is required), etc. , to ensure that the applicant's patent is not in the invalidation procedure, and is valid until the date of the request.
Where the application involves a patent for utility model, a search report issued by the patent administration department of the State Council shall also be submitted. If the applicant is a foreign enterprise or individual, the Chinese translation of the power of attorney must be exactly the same as the Chinese name of the patentee in the patent document.
Baidu Encyclopedia-Pre-litigation injunction