1, international law: TRIPs agreement
TRIPs agreement is undoubtedly the most important international treaty regulating international intellectual property rights at present. TRIPs Agreement involves not only the requirements of substantive laws of intellectual property rights in various countries, but also the requirements of domestic law enforcement procedures in member countries. Among them, the provision of temporary measures system is one of the most important features of TRIPs Agreement, and it is also the most basic law enforcement obligation of each member country. The third part of the agreement specifically stipulates the implementation of intellectual property rights, and section 3 specifically stipulates temporary measures (that is, article 50). In addition, in Section 4, "Special requirements related to border measures", Article 5 1 provides for customs suspension (measures taken at the request of the obligee) and Article 58 provides for actions taken ex officio (measures taken ex officio).
Generally speaking, international treaties can be the source of China law. However, as for the TRIPs Agreement, like most countries, according to China's WTO commitments, China has also adopted the method of transforming it into domestic law to implement it. That is to say, when trying intellectual property cases, the courts in China must rely on the provisions of China's domestic intellectual property-related legislation, and will not directly invoke the provisions of the TRIPs Agreement.
2. Domestic law: laws, administrative regulations and judicial interpretations.
At present, the temporary injunction system (that is, the pre-litigation application is ordered to stop the relevant behavior) and the pre-litigation evidence preservation system are only unique systems in China's intellectual property cases. However, as an important part of the interim measures system, the property preservation system and the evidence preservation system in litigation existed and were implemented long before China joined the WTO to amend the intellectual property law. According to the provisions of the Civil Procedure Law 199 1, all cases, including intellectual property cases, can take property preservation measures before litigation and property preservation and evidence preservation measures during litigation. In addition, Article 97 of the Civil Procedure Law is about the system of prior execution in litigation. According to item (3) of this article, "it needs to be executed first because of an emergency", an injunction can also be taken in intellectual property civil cases.
Article 6 1 of China Patent Law, which was revised on August 25th, 2000 and came into effect on July12006, established the pre-litigation injunction system for the first time in China, and further clarified the pre-litigation property preservation system of patent cases. The Trademark Law 12 1 revised on October 27th, 2006 and the Copyright Law revised on October 27th, 2006 reiterated that
In order to apply the law and improve the system of interim measures before litigation, according to the above legislation, China's Supreme Court has made a number of judicial interpretations, stipulating a series of specific issues, such as the applicant's qualification, jurisdiction and acceptance, evidence submission, guarantee, time limit and content of ruling, review of reconsideration application, lifting of injunction, application for wrong compensation, validity period of injunction, liability for violation of injunction, etc., and further improving the system of property preservation before litigation, and at the same time clarifying that the parties can also apply for these issues during prosecution or litigation. There are mainly two judicial interpretations: one is "Several Provisions of the Supreme People's Court on Applicable Laws for Stopping Patent Infringement before Litigation" (namely "Interpretation of Patent Prohibition"); Second, the Supreme People's Court's interpretation of the applicable law on stopping the infringement of the exclusive right to use a registered trademark and preserving evidence before litigation (i.e. trademark prohibition interpretation). In addition, the second paragraph of Article 30 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes also stipulates that the court shall take pre-litigation measures in copyright cases with reference to the Provisions on Interpretation of Trademark Prohibition Orders; The Notice of the Supreme People's Court on the Trial of Integrated Circuit Layout Design Cases also points out that if an application is made to the court to take measures to order it to stop infringing the exclusive right of layout design before litigation, the interpretation and execution shall be prohibited with reference to the patent.
Neither the Patent Law nor the Regulations on the Protection of Layout-design of Integrated Circuits stipulates the system of pre-litigation evidence preservation, so the obligee cannot apply for pre-litigation evidence preservation alone, which is really inconsistent with the relevant provisions of the Copyright Law and the Trademark Law. However, in June of 20065438 and 200 10/0, the Provisions of the Supreme People's Court on Applicable Laws for Stopping Patent Infringement before Litigation and the Notice of the Supreme People's Court on Trial of Layout-design Cases of Integrated Circuits made some breakthroughs, stipulating that the people's court can refer to the provisions of Article 74 of the Civil Procedure Law at the request of the parties, and at the same time preserve the evidence. That is, the applicant is allowed to apply for evidence preservation while applying for a temporary injunction before litigation; Only when the application for temporary injunction before litigation is successful and evidence preservation is carried out at the same time in the process of enforcement of injunction.
Under the existing legal framework, there is no legal basis for ordering to stop infringement and preserving evidence before litigation in cases of unfair competition and infringement of new plant varieties. Before the relevant laws and regulations are revised or the judicial interpretation is clear, unfair competition cases, including cases of infringement of trade secrets and infringement of new plant varieties, cannot take measures such as ordering to stop the infringement before litigation and preserving evidence before litigation. Therefore, only after the case is accepted, that is to say, you can apply for interim measures of injunction and evidence preservation during prosecution or litigation.
In short, the legal basis of China's current pre-litigation interim measures system can be summarized as (with special provisions):
Unfair competition in patents, trademarks, copyrights, layout designs and new plant varieties
Is there a pretrial injunction?
Property preservation before litigation depends on the civil procedure law.
Pre-litigation evidence preservation can be synchronized with injunction.
(2) Procedural issues in cases of interim measures before intellectual property litigation.
1, applicant qualification
According to the relevant intellectual property law, only the obligee and the interested party have the right to apply to the court for interim measures before litigation. According to the Interpretation of Prohibition of Patents and Trademarks, the interested parties include the licensee of intellectual property licensing contract and the legal heir of intellectual property. The licensee of an exclusive license contract may apply to the people's court separately; If the obligee does not apply, the licensee of the exclusive license contract may apply. The so-called right holder does not apply, including that the right holder explicitly indicates that he does not apply, and when the licensee requests or notifies the right holder to apply separately or jointly, the right holder fails to reply or refuses to apply within a reasonable period of time.
2, jurisdiction and division of labor
According to the provisions of the Civil Procedure Law and the judicial interpretation of intellectual property rights, cases of pre-litigation injunction and pre-litigation evidence preservation shall be under the jurisdiction of the court with corresponding jurisdiction over patent, trademark and copyright cases in the place where the infringement occurred or where the respondent lived. Cases that apply to stop patent infringement and property preservation before litigation belong to patent dispute cases. Patent cases and layout-design cases must be under the jurisdiction of the competent court designated by the Supreme People's Court. Since the amount is not disputed, it should be under the jurisdiction of the intermediate court or the grass-roots court designated by law to have jurisdiction over intellectual property cases.
For property preservation before litigation, the relevant provisions of the Civil Procedure Law and its judicial interpretation shall be implemented, including the provisions on hierarchical jurisdiction and exclusive jurisdiction, as well as the reply on how to understand the second paragraph of Article 3 1 in the Supreme People's Court's Opinions on the Application of Several Issues (Fa Shi [1998] No.5) and the reply of the Supreme People's Court on several issues concerning property preservation before litigation (Fa Shi [/]
For disputes arising from jurisdiction between courts, including non-infringement litigation, infringement litigation and pre-litigation interim measures cases arising from the same legal fact or the same legal relationship, the relevant courts shall promptly negotiate according to law or report to * * * for designation with the higher court, determine the jurisdiction according to the principle of accepting the case first before jurisdiction, and transfer the case accepted later to joint trial according to law.
With regard to the division of labor in accepting cases of interim measures before litigation within the court, due to the strong professionalism of the cases, especially the nature of pre-litigation injunction cases and infringement cases is similar, and the standards and contents of review and judgment are basically the same, which requires professional judges to review and decide in time. For this reason, the Chengdu meeting in 2004 made it clear that such cases, after being examined by the court filing court, should be immediately handed over to the commercial court in charge of intellectual property trials, and a professional judge will conduct substantive examination to ensure that a decision can be made within the statutory time limit.
3, documents and evidence-form requirements
(1) written application documents
According to the relevant judicial interpretation, the application for pre-litigation injunction shall specify: (1) the parties and their basic situation; (2) The specific content and scope of the application; (3) the reasons for the application, including a specific explanation that the failure to stop the relevant acts in time will cause irreparable damage to the legitimate rights and interests of the obligee or interested party.
The application for evidence preservation before litigation shall specify: (1) the parties and their basic information; (2) The specific content, scope and place of applying for evidence preservation; (3) The object that the evidence requested for preservation can prove; (4) the reasons for the application, including a specific explanation that the evidence may be lost or difficult to obtain later, and the parties and their agents ad litem cannot collect it by themselves due to objective reasons.
(2) evidence
The evidence required by TRIPs Agreement should be "any reasonably available evidence" involving the following two aspects. The first is the evidence that the applicant is the right holder. Of course, to prove that you are the right holder, you must also prove the true validity of your rights. The second is to prove that the applicant's rights are being infringed or that such infringement is about to happen. In addition, according to Article 50 quinquies of the Agreement on Trade-related Aspects of Intellectual Property Rights, "the competent authority executing interim measures may require the applicant to provide other necessary information to confirm the goods concerned." If the related goods are identified as counterfeit.
According to the relevant judicial interpretation, when applying for pre-litigation injunction, the applicant shall submit the following evidence: (1) evidence to prove the authenticity and validity of the subject of rights and rights. A trademark registrant shall submit a trademark registration certificate; The patentee shall submit documents including patent certificate, patent claim, specification, patent annual fee payment certificate, etc. Where the application involves a patent for utility model, the applicant shall also submit a search report issued by the patent administration department of the State Council; The copyright owner and the adjacent obligee shall submit evidence to prove that they are obligees, including manuscripts, originals, legal publications, copyright registration certificates, certificates issued by certification bodies, contracts for obtaining rights, etc. The interested party shall submit a copy of the license contract, the certification materials filed with the administrative organ and the right certificate; If it is not filed, it shall submit the certificate of the right holder or other evidence to prove that it enjoys rights. If the licensee of an exclusive license contract applies separately, it shall submit evidence that the obligee has given up the application; The heir to the right shall submit the evidence materials that have been inherited or are being inherited. (2) Evidence to prove that the respondent is committing or about to commit an infringement, including the alleged infringing product. In the patent case, materials such as the comparison between the patented technology and the alleged infringing product shall also be submitted.
To apply for pre-litigation evidence preservation, evidence proving the authenticity and validity of the subject of rights and rights shall be submitted.
To apply for pre-litigation property preservation, in addition to the evidence proving the authenticity and validity of the subject of rights and rights, it should also submit evidence or specific instructions proving that the case is urgent and the legal rights and interests will be irretrievably damaged if property preservation is not taken immediately.
Foreign-related evidence should go through legal proof procedures in accordance with the rules of evidence in civil procedure, especially the evidence involving the identity of the right subject. However, for the physical evidence and audio-visual materials formed abroad, including public publications, the authenticity of evidence is generally reliable. In principle, the formal legality of evidence can be directly determined, and the admissibility of its contents can be emphatically examined without going through legal authentication procedures. In particular, patent and copyright cases will involve overseas public publications, and it is unrealistic to require all certification procedures. However, if the other party raises an objection and can prove that there is a problem with the authenticity of overseas public publications, and the party providing evidence cannot effectively refute it, it shall go through the legal proof procedures.
4. Guarantee, additional guarantee and counter-guarantee
(1) Guarantee requirements and forms
According to the relevant provisions of the Civil Procedure Law and the judicial interpretation of intellectual property rights, the applicant for pre-litigation injunction and pre-litigation property preservation must provide guarantee; If the application for pre-litigation evidence preservation may involve the property loss of the respondent, the court may order the applicant to provide corresponding guarantees; If the applicant cannot provide a guarantee, the application shall be rejected; If the applicant provides a reasonable and effective guarantee by means of guarantee, mortgage, etc., the court shall allow it.
When determining the scope of guarantee for pre-litigation injunction cases, the court should consider the income from the sale of commodities involved in the order to stop the relevant acts, the reasonable expenses for warehousing and storage, and the reasonable losses that may be caused by stopping the relevant acts. The amount of guarantee provided by the applicant for pre-litigation property preservation cases shall be equivalent to the amount requested for preservation.
When taking preservation measures for material evidence of greater value, the applicant shall generally be ordered to provide corresponding guarantees.
The form of guarantee is mainly to examine its effectiveness, and the credit guarantee provided by enterprises with good credit standing can be recognized after examination; The amount of guarantee should be reasonably determined, to the extent that it is enough to make up for the losses caused by the wrong application and pay related expenses.
Some courts require the applicant to pay a certain amount of deposit before the ruling, supplemented by other guarantee methods. After notifying the respondent or during the execution of the award, both parties may also be required to negotiate to determine the calculation method of the amount of losses that may be caused to the respondent due to temporary measures such as daily quota calculation, and take this as the calculation basis of the deposit that the applicant should pay. If it is found that the deposit provided by the applicant is insufficient, it is required to provide additional guarantee, otherwise the temporary measures will be lifted immediately. This will not only ensure that the applicant can get temporary measures in time, but also prevent the parties from abusing their rights. Moreover, this mutually confirming calculation method can also be used as the basis for calculating the amount of compensation in tort litigation.
(2) Additional guarantee
According to the relevant judicial interpretation, in the process of executing the pre-litigation injunction ruling, if the respondent may cause greater losses due to this measure, the court may order the applicant to add corresponding guarantees. If the applicant fails to provide additional guarantee, the relevant suspension measures may be lifted.
(3) Counter-guarantee
According to the relevant judicial interpretation, the measures taken by the pre-litigation injunction ruling shall not be lifted because the respondent provides guarantee. Unless the applicant agrees to terminate. This is obviously different from providing counter-guarantee to lift property preservation measures. The purpose of the injunction is to prevent irreparable damage to the obligee, which cannot be made up by monetary compensation alone.
5, ruling and notice
(1) Time limit for adjudication
According to the relevant judicial interpretation, after accepting the application for pre-litigation injunction, the court shall make a written ruling within 48 hours if it meets the requirements for submitting evidence after examination. Paragraph 2 of Article 9 of the Interpretation on Prohibition of Patents stipulates that if the court needs to verify the relevant facts within the aforementioned time limit, it may summon one or both parties to make an inquiry and then make a ruling in time. This is mainly due to the complexity of patent cases. "Then make a ruling in time" means that the court can make a ruling after 48 hours, but requires the court to summon one party or hold a hearing of both parties within 48 hours, and then make a ruling as soon as possible.
According to the Civil Procedure Law and relevant judicial interpretations, the court must make a ruling on cases of pre-litigation property preservation and pre-litigation evidence preservation within 48 hours after accepting the application.
(2) Unilateral procedure/bilateral procedure to make an award.
According to the relevant legislation and judicial interpretation in China, interim measures before litigation can only be made through unilateral procedures. Whether it is necessary to inform the respondent and hold a hearing in the process of examining the application for interim measures before litigation mainly depends on the difficulty of judging the possibility of infringement and whether the relevant evidence is sufficient and reliable. Under normal circumstances, evidence preservation and property preservation measures are made through unilateral procedures without notifying the respondent.
(3) the scope of the award
According to the relevant judicial interpretation, the court's ruling on pre-litigation injunction or pre-litigation evidence preservation should be limited to the scope of the applicant's application. According to Article 94 of the Civil Procedure Law, property preservation is limited to the scope of the request or the property related to the case. The object of evidence preservation is generally the financial books of the accused infringement object or the defendant, which can prove the infringement or determine the amount of damages.
(4) Notice of ruling
According to the relevant judicial interpretation, if the court makes a pre-litigation injunction ruling, it shall notify the respondent in time, no later than 5 days.
5] The effectiveness and enforcement of the award.
According to the Civil Procedure Law and the judicial interpretation of intellectual property rights, the pre-litigation interim measures ruling should be implemented immediately after it is made. During the period of reconsideration, the execution of the pre-litigation injunction and the pre-litigation property preservation ruling shall not be suspended. The judicial interpretation of the relevant injunction shall be notified to the respondent no later than 5 days, and shall be implemented within 5 days after the ruling is made at the latest.
Step 6 reconsider
According to the relevant judicial interpretation, if a party refuses to accept the pre-litigation injunction ruling, it may apply for reconsideration once within 10 days from the date of receiving the ruling.
According to Article 99 of the Civil Procedure Law, if a party refuses to accept the ruling on property preservation, he may apply for reconsideration once (there is no time limit).
There is no provision on whether to apply for reconsideration for the pre-litigation evidence preservation ruling. However, demanding due process punishment does not exclude the right of the parties to raise objections, and the court should also review and answer the objections of the parties.
The party who files a reconsideration of the pre-litigation injunction order and the pre-litigation property preservation order may be the applicant, except the respondent, who rejects the application or does not fully support it.
7. Termination and extension of award
(1) must be removed.
According to the Civil Procedure Law and the judicial interpretation of intellectual property rights, if the applicant fails to file a lawsuit within 15 days after the court takes interim measures before litigation, the court shall revoke the measures taken by the ruling.
(2) it can be lifted.
According to the judicial interpretation of intellectual property rights, the court ordered the applicant to add the corresponding guarantee. If the applicant does not add the guarantee, the relevant stop measures can be lifted. But it will not produce the consequences that must be lifted.
It can also be dissolved after reconsideration.
(3) automatic termination and extension of the term.
According to the judicial interpretation of intellectual property rights, the effectiveness of the pre-litigation injunction ruling should generally be maintained until the final legal document takes effect. The court may, according to the circumstances of the case, determine the specific time limit for the pre-litigation injunction; At the expiration of the time limit, according to the request of the parties and the additional guarantee, an order may be made to continue the execution of the injunction.
8, the applicant does not sue or apply for the wrong responsibility.
According to the judicial interpretation of intellectual property rights, if the applicant has not filed a lawsuit or the application is wrong, the respondent may file a lawsuit in a court with jurisdiction to request the applicant for compensation, or file a claim for damages in the infringement lawsuit filed by the applicant, and the court may handle it together.
No matter what kind of pre-litigation interim measures, as long as the applicant fails to file a lawsuit on time or the application is wrong, causing losses to the respondent, it shall be liable for compensation. The so-called application error includes the risk of losing the case that the applicant may bear.
(2) Compensation procedure
The respondent shall claim rights through litigation, and shall not require the property provided by the applicant to be delivered directly to the respondent. The court must also, at the request of the defendant, not decide on its own to compensate the defendant.
(3) Jurisdiction of compensation litigation
Compensation litigation caused by pre-litigation injunction and pre-litigation evidence preservation shall be determined according to the jurisdiction of tort litigation, and may also be examined and handled together with the tort litigation filed by the applicant. According to Article 97 of the Judicial Interpretation of the Civil Procedure Law, if a party fails to file a lawsuit within the statutory period after applying for property preservation before litigation, causing property losses to the respondent and causing a lawsuit, it shall be under the jurisdiction of the people's court that took property preservation measures.
9. The consequences of the respondent's violation of the award
According to the judicial interpretation of intellectual property rights, if the respondent violates the court's pre-litigation injunction or evidence preservation, it shall be dealt with in accordance with the provisions of Article 102 of the Civil Procedure Law. In other words, this is a case of "refusing to perform the legally effective judgment or ruling of the people's court", and the court may impose fines and detention on the participants or others according to the seriousness of the case; If a crime is constituted, criminal responsibility shall be investigated according to law. If it is a unit, the main person in charge or the person directly responsible may be fined or detained; If a crime is constituted, criminal responsibility shall be investigated according to law. In a case, the Nanjing Intermediate People's Court imposed a fine on the respondent's unit and legal representative and a penalty of judicial custody for the respondent's continued production and export of the alleged infringing products in violation of the temporary injunction.