The right to promise to sell should be protected by law from both procedural law and substantive law. The protection of procedural law mainly ensures that the relevant application rights and litigation rights enjoyed by the parties can be realized. What is mainly explained here is the right to apply for interim judicial measures in patent litigation.
Temporary judicial measures are measures taken to stop any infringement or preserve relevant evidence of suspected infringement. It is an effective measure for obligees to oppose infringement and protect their legitimate rights and interests from illegal infringement. At the same time, it is also of great significance to determine the establishment of infringement.
Article 50 of the Agreement on Trade-related Aspects of Intellectual Property Rights explicitly requires the judicial authorities of member countries to have the right to take temporary judicial measures in the following two cases:
1, to prevent infringement, especially to prevent infringing goods from entering commercial channels;
2. Preserve the evidence related to the alleged infringement. The first is called "temporary injunction" and the second is called "evidence preservation measures". According to the Trips Agreement, these measures can be taken before or during the litigation.
The revision of China's patent law is also based on the above provisions of the Trips Agreement, and the following provisions are made in Article 6 1:
"Where the patentee or interested party has evidence to prove that others are implementing or about to implement their patent rights, and their legitimate rights and interests will be irretrievably damaged if they are not stopped in time, they may apply to the people's court for measures to be ordered to stop relevant acts and property preservation before prosecution.
The people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of People's Republic of China (PRC) in handling the application mentioned in the preceding paragraph.
According to the provisions of this article, the people's court must meet the following conditions when taking temporary judicial measures:
1, provided that the patentee or interested party applies. In other words, unless applicable, the people's court shall not take the initiative to take temporary judicial measures. The patentee or interested party has the right to choose at this time.
2. The prerequisite is that others are carrying out or will soon carry out patent infringement. If this behavior is not stopped in time, it will bring bad consequences, and there is evidence to prove the occurrence of the above behavior.
3. The time condition is that an application must be made before prosecution.
4. The applicant must also provide corresponding guarantee.
According to the relevant provisions of the Civil Procedure Law, if the respondent provides corresponding guarantee or the applicant fails to bring a lawsuit within the specified time (15), the people's court has the right to terminate the temporary judicial measures it has taken. The protection of the promised sales right in substantive law is mainly to determine the compensation amount of the infringer.
The original patent law of our country only made very simple provisions on the compensation for patent infringement. This revision of the patent law has absorbed the reasonable contents of judicial practice and judicial interpretation, which is stipulated in Article 60 of the new patent law.
Since the infringement of the promised sales right is an infringement without actual damage, can the amount of compensation be determined according to the losses suffered by the obligee due to the infringement? Some people think that the expenses paid by the obligee to stop this "immediate infringement" can be regarded as losses and claim compensation. The author believes that this view is inappropriate. The reasons are as follows: First, the "loss" mentioned in Article 60 of the Patent Law is the product of the reduction of the sales volume of patented products by the patentee and the profit of each patented product when the infringing products are sold in the market. The cost of stopping infringement has nothing to do with it. Second, if compensation is made on the basis of expenses, because the expenses are often very small, which is not conducive to protecting the interests of obligees and is not in line with the original intention of severely cracking down on infringement. Similarly, the "amount of compensation" can not be determined according to the interests obtained by the infringer with the infringement.
At the same time, the infringement of the promised sales right is also an infringement that does not require the subjective fault of the actor. Item 3 of Article 45 of the Trips Agreement stipulates that "in appropriate occasions, even if the infringer does not know or has no sufficient reason to know that his activities are infringement, the member may authorize the judicial authorities to order him to return profits or pay legal compensation." Since there is no "statutory compensation" system in China's law, according to Article 6 1 of the Patent Law or the above agreement, we believe that after the infringement is established, the court should and can only reasonably determine the compensation amount according to the multiple of the patent license fee. In addition, if the infringer suffers mental damage, he can still claim a reasonable amount of compensation.