Regulations of the Supreme People's Court Concerning the Laws Applicable to the Temporary Restraining Order on Patent Infringement
(Adopted at the 1179th Meeting of the Trial Committee of the Supreme People's Court on June 5, 2001)
(2001) Fashi No. 20
Bulletin of the Supreme People's Court of the People's Republic of China
Regulations of the Supreme People's Court Concerning the Laws Applicable to the Temporary Restraining Order on Patent Infringement, adopted at the 1179th meeting of the Trial Committee of the Supreme People's Court on June 5, 2001, is now promulgated and put in force as of July 1, 2001.
June 7, 2001
To ensure the protection of the legitimate rights and interests of the patentees and the interested parties, several issues concerning laws applicable to the temporary restraining order on patent infringement are provided as follows in accordance with the relevant provisions of the General Principles of Civil Law of the PRC, Patent Law of the PRC ("Patent Law"), Civil Procedure Law of the PRC ("Civil Procedure Law").
Rule 1. In accordance with the provisions of Article 61 of the Patent Law, the patentee or the interested parties may apply with the people's court for the temporary restraining order on patent infringement committed by the applied party.
The interested parties entitled to file the application include the licensee of the sole license contract and the legitimate heir of patent property right. Of the licensees of the patent license contracts, licensee of the exclusive license contract may file the application with the people's court on his own part, while licensee of the sole license contract may file the application on the conditions that the patentee does not file the application.
Rule 2. The application for temporary restraining order on patent infringement shall be filed with the people's court with the jurisdiction over patent infringement cases.
Rule 3. The patentee or the interested party shall file with the people's court a written application which carries such information as the name of the applicant and his basic information, specific content of the application, scope and reasons etc. The reasons of the application shall include the detailed description of the irreparable damages on the applicant's legitimate rights and interests if such act is not duly prohibited.
(1) The patentee shall submit documents certifying the authenticity and validity of his patent right, including patent certificate, claims, specification, receipt of the payment of patent annuity. Where the application concerns the patent of utility model, the applicant shall submit the search report issued by the patent administration under the State Council.
(2) The interested party shall submit the certification for patent license contract and recordal thereof with the patent administration under the State Council. Where the contract is not recorded, the party shall submit the confirmation by the patentee or other evidences proving his claims.
Where the licensee of the sole license contract files the application on his own part, he shall submit the certification of disclaimer by the patentee.
The heir of patent property shall submit the evidence to prove that he has inherited or is inheriting the property right.
(3) The applicant shall submit the evidences proving that the applied party is executing or is to execute infringement on his patent right, including the infringing product and the materials comparing technical features between the patent technology and the technology of the infringing product.
Rule 5. The issues in the adjudication made by the people's court on the temporary restraint of patent infringement shall be restricted to the scope of the application made by the patentee or the interested party.
Rule 6. The applicant shall provide guarantee for his application. Where the applicant fails to provide guarantee for his application, the application shall be refused.
The people's court shall accept such reasonable and effective guarantees in the form of promise or pledge etc. as provided by the interested party.
In deciding the guarantee scope, the people's court shall take into consideration the sales income of the products on which temporary restraining order is imposed, the reasonable storage and safekeeping expenses, possible losses incurred from the applied party's cessation of the said act, reasonable expenses including the employee's remuneration, and other factors.
Rule 7. In the enforcement of the temporary restraining order, if the applied party may suffer greater losses due to such measures, the people's court may order the applicant to supplement relevant guarantees. Where the applicant fails to supplement guarantee, the related restraining measures shall be relieved.
Rule 8. Measures taken for the temporary restraint of patent infringement shall not be relieved because of the counter guarantee offered by the applied party.
Rule 9. The people's court shall make adjudication in writing within 48 hours from acceptance of the application filed by a patentee or the interested party for the temporary restraint of the patent infringement, if it decides through examination the application falls under Rule 4 of these Regulations. Where the adjudication orders the applied party to temporarily restrain from the patent infringement, it shall be executed immediately.
Within the time limit mentioned in the preceding paragraph, if the people's court needs to check related facts, it may summons one party or both parties for inquiry and then makes adjudication in due course.
The people's court shall serve its adjudication on the enforcement of temporary restraining order on the applied party in due course, not exceeding 5 days of the adjudication.
Rule 10. If any interested party is dissatisfied with the adjudication, it may have one chance to apply for a review within 10 days from receipt of the adjudication. The enforcement of the adjudication shall not be suspended in the course of review.
Rule 11. The people's court shall examine the review application by the interested parties from the following aspects:
(1) if the applied party's act that is executing or is to be executed constitutes patent infringement;
(2) if the applicant's legitimate rights and interests shall suffer irreparable damages without enforcement of relevant measures;
(3) the guarantee status of the applicant;
(4) if public interests shall be damaged due to the enforcement of temporary restraining order on the applied party.
Rule 12. Where the patentee or the interested parties fail to file a lawsuit within 15 days from the enforcement of the measures for the temporary restraint of the related acts, the people's court shall relieve the measures adjudicated..
Rule 13. Where the applied party suffers losses due to that the applicant fails to institute a legal proceeding or makes a false application, the applied party may sue to claim damages from the applicant with the people's court with jurisdiction, or may claim damages in the patent infringement litigation filed by the patentee or the interested party, and the people's court may handle the claims in the same case.
Rule 14. The validity of the adjudication on temporary restraint of patent infringement shall generally be sustained until the legal writ of final instance is effected. The people's court is entitled to decide a specific time limit according to different cases. At expiration of the time limit, the people's court may keep on the enforcement of temporary restraining order at request of the interested parties.
Rule 15. Where the applied party violates the adjudication made by the people's court on the temporary restraint of the related act, it shall be handled pursuant to the provisions of Article 102 of the Civil Procedure Law.
Rule 16. In enforcing the measures for temporary restraint of patent infringement, the people's court may simultaneously proceed with evidence preservation in reference to the provisions of Article 74 of the Civil Procedure Law when the interested party so applies.
The people's court may proceed with property preservation in accordance with the provisions of Article 92 and Article 93 of the Civil Procedure Law when the interested party so applies.
Article 17. Where the patentee or the interested party requests for temporary restraint of patent infringement first when he/it institutes legal proceedings with the people's court on the patent infringement, the people's court may make adjudication on the temporary restraint of patent infringement prior to the proceedings.
Article 18. For the cases involving temporary restraining order on patent infringement, its applicants shall pay the expenses according to the Litigation Charges by the People's Court and its supplementary provisions.
