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Temporary
Restraining Order on Patent Infringement
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.¡¡ |
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