A pre-litigation temporary injunction refers to a measure taken by the court to order the infringer to stop the relevant behavior before filing a lawsuit. The court has the power to take timely and effective interim measures at the request of one party to prevent delays that may cause irreparable damage to the right holder or the risk of evidence being destroyed.

A pre-litigation injunction is made entirely based on the applicant’s unilateral application without a court hearing, so it must be strictly restricted. This is also an inevitable requirement to prevent judicial protection, a public resource, from being abused by parties.

Article 66 of China’s Patent Law provides Chinese and foreign patentees and relevant interested parties with the right to apply to the court in an emergency to order the infringing party to stop relevant actions before formal prosecution. . This is what is often referred to in the industry as a "temporary restraining order."

It should be pointed out that although there is no necessary procedure for the parties to cross-examine the evidence during the pre-litigation injunction process, when the court determines the validity of the evidence submitted by the applicant, it should ex officio examine the authenticity and validity of the evidence. Conduct a preliminary review in terms of relevance and other aspects to reasonably determine the validity of the evidence, and should not accept the evidence submitted by the applicant without reviewing it because a pre-litigation injunction is issued based on a unilateral application. Extended information

According to my country’s relevant laws and judicial interpretations, when pre-litigation injunctions are currently applied in judicial practice, the following four elements should generally be examined in substance:

(1) The defendant Whether the applicant's ongoing or about-to-be-implemented behavior constitutes an infringement of intellectual property rights;

(2) Whether failure to take relevant measures will cause irreparable damage to the applicant's legitimate rights and interests;

(3) The applicant provides guarantee;

(4) Whether the injunction will harm the interests of the public.

Applicants should provide documents proving the authenticity and validity of their patent rights, including: patent certificate, claims, instructions, drawings, and proof of patent annual fee payment (if the applicant is an interested party, It is necessary to provide evidence proving that it is a legal interested party), etc., to confirm that the applicant's patent is not in the invalidation process and is a valid patent as of the date of filing the request.

If the application involves a utility model patent, the applicant is also required to submit a search report issued by the Patent Administration Department of the State Council. If the applicant is a foreign enterprise or individual, the Chinese translation on the power of attorney must be exactly the same as the Chinese name of the patentee on the patent document.

Baidu Encyclopedia-Pre-litigation injunction