CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
Requirements Before a Preliminary Injunction Request The patentee or interested party can apply for a preliminary injunction only for granted patents. Patent applications or translations are not eligi - ble as a legal basis for either infringement law - suits or preliminary injunctions. Quia timet relief is available in certain circum - stances. The law sets forth the following that shall be considered as an “urgent situation”: • where trade secrets of the applicant are to be illegally disclosed; • where the applicant’s right of publication or privacy and other personal rights are to be infringed; • where the IP in dispute is to be illegally dis - posed of; • where the applicant’s IP is being or will be infringed during a time-sensitive occasion such as a trade fair; • where a time-sensitive popular show is being or will be infringed; and • other situations requiring immediate preserva - tion measures. There are no specific procedural rules for pat - ent litigation in life sciences cases. The same civil procedural rules apply to applications for preliminary injunctions in pharmaceutical patent cases. How Is the Alleged Infringer Notified of a Preliminary Injunction Request? Upon ruling to enact preservation measures or reject an application, the court is obligated to serve a ruling on both the applicant and the respondent. If delivering the ruling to the respondent might impact on the adoption of preservation measures, the court may serve the
the patentee or interested party has the option of seeking a preliminary injunction from the court. This injunction may include measures under the law such as: • attaching property; Upon receipt of an application, the court, in urgent circumstances, is obliged to issue a rul - ing within 48 hours. If the court decides to grant the preliminary injunction, its execution is imme - diate. During the examination of a preliminary injunc - tion application, the court is mandated to take into account several factors, including: • directing specific conduct; or • prohibiting particular actions. • the factual and legal basis of the applicant’s request, encompassing the stability of the intellectual property’s (IP) validity under con - sideration; • the potential for irreparable damage to the legitimate rights and interests of the applicant if the preliminary injunction is not granted, as well as the impact on the enforcement of the eventual ruling or any other resulting harm; • weighing of the damage caused by the failure to grant a preliminary injunction against the harm caused by granting it to the respondent; • consideration of whether the granting of a preliminary injunction would adversely affect public interests; and • consideration of any other relevant factors. Most preliminary injunctions are ordered based on ex parte application. However, if needed, the court has discretion to hold an inter parte hear - ing over the application for preliminary injunc - tion.
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