To combat patent infringements in China, the Chinese Patent Law
set up at least three types of remedies for patent holders, namely,
preliminary injunction, permanent injunction and damages. Compared
with the other two, preliminary injunction sometimes may be more
desirable for the patent holder as the infringement could be
stopped earlier and further losses of the patent holder be avoided.
However, the situation so far is that a preliminary injunction
usually is difficult to be granted by the Chinese courts.
The major reasons why the Chinese courts are reluctant to grant
preliminary injection are because a patent infringement usually is
very difficult to be found in a very short time before the trial.
If the injunction is eventually found wrong, serious damages might
be caused to the alleged infringer. Consequently the Chinese courts
would request that the patent holder provide a bond to the court
when requesting the preliminary injunction for possible
compensation for the alleged infringer.
Nevertheless, in spite of the above reluctance and requirement
for bond, the Chinese courts do issue orders of preliminary
injunction. One recent case involved a foreign invested company
Abbott Trading (Shanghai) Co. Ltd (Abbott) and two local Chinese
companies (manufacturing and seller) in which Abbott accused the
Chinese companies infringed its design patent for the tank
containing milk powder in the Beijing Third Intermediate Court.
Upon Abbott filing the petition for preliminary injunction, the
court granted the preliminary injunction order very quickly. At the
execution of the preliminary injunction, the Chinese companies came
to the court and reached a settlement with the plaintiff. According
to the record, this is the first preliminary injunction case for
patent infringement ever granted in Beijing area.
In another case the plaintiff is Shanghai Novartis Trading Co.,
Ltd and the defendants are local Chinese drug manufacturer and a
drug store. The patent in dispute relates to the second medical use
of Glivec in the treatment of gastrointestinal stromal tumors
("GIST"). Upon the request of the plaintiff, the court
granted the preliminary injunction based on the reason that if
manufacturing and sale were not stopped immediately, the plaintiff
would suffer irreparable damages.
As Beijing courts are located in the capital area, the
developments of Beijing Courts would bring great impact on the
other courts all over China. The recent trend of Beijing Court
seems to show an indication that the protection strength on patent
right would be enhanced, which seems to be a good news to all the
patentees including foreign patentees and investors who are doing
business or are going to do business in China in the future.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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