China Law Insight : China Business and Intellectual Property Lawyers & Attorneys : King & Wood Law Firm : IP, Arbitration, Litigation, Securities, Foreign Investment

In the Opinion, the Supreme People's Court notes that if, “[t]he injunctive order, if granted, would significantly harm the interests of one of the parties concerned; or is contrary to the public interest; or would be impractical to enforce, the Court may, after considering the specific circumstances of the particular case, not grant the injunctive relief, but instead settle the dispute by awarding sufficient compensation, economic damages or through other alternative means.”
 

Traditionally, injunctive relief was available in all cases where infringement is established. The abovementioned guidelines offered by the Opinion will likely change such commonly-accepted practices under the premise of economic stability. The Supreme People's Court also emphasized that the courts shall evaluate the losses suffered by the rights holder and award damages so as to sufficiently compensate for such losses. The Supreme People’s Court proposes to strike a balance between the public interest in economical stability and the private rights of Intellectual property right holders by suggesting that “sufficient compensation” is a viable alternative for injunctive relief.
 

As the Opinion is newly-issued, its implementation and its impact upon judicial practice in China will need to be further monitored.
 

在知识产权案件中可以经济补偿替代停止侵权
最高人民法院于2009年4月21日 发布《关于当前经济形势下知识产权审判服务大局若干问题的意见》（以下简称“意见”）。最高人民法院在该《意见》中首次明确，对于知识产权民事侵权案件，停止侵害不再是必须的救济方式。最高人民法院认为，在一定条件下，可以以合理的赔偿代替停止侵害的诉求。最高院在《意见》中指出，“如果停止有关行为可能造成当事人利益失衡，或有悖社会公共利益，或实际上无法执行，可以根据案件具体情况进行利益衡量，不判决停止有关行为，而采取更充分的赔偿或者经济补偿等替代性措施了断纠纷”。
在中国司法实践中，停止侵权通常被认为是认定侵权后必须适用的救济手段，该《意见》提出的上述指导原则很有可能突破这一传统观念，这显然与最高人民法院力图稳定既有的社会经济秩序的理念相契合。最高人民法院在该《意见》中也强调了综合评价权利人遭受的损失，并给予其足够赔偿的指导原则。通过同时运用上述原则，最高人民法院试图在维护经济秩序稳定这一公共利益和通过建议足够的经济赔偿保护权利人权益之间寻求一种平衡。
鉴于该指导意见刚刚发布，它在实践中的运用以及对具体案件的影响还有待于进一步观察。
 

B. Reinforced Administrative Protection

The New Patent Law elevates the powers previously granted to the administrative authority including the power to inquire, conduct site inspections, duplicate relevant documents, etc. Furthermore, the new article also grants new powers of attachment and seizure, which are expected to reinforce the administrative protection of patent rights.

C. Increased Responsibility of Indemnification

The maximum fine for patent counterfeiting has been raised from 3 times the value of the illegal proceeds to 4 times. In cases where there are no illegal proceeds, the maximum fine has been raised from RMB 50,000 to RMB 200,000. The New Patent Law includes a provision concerning statutory compensation between RMB 10,000 to RMB 1,000,000, which the current Patent Law does not have any provision for. According to the judicial interpretation issued by the Supreme People's Court, the maximum statutory compensation that can be granted at the court's discretion is RMB 500,000.

D. Further Perfected Judicial Protection

The New Patent Law stipulates the procedure for pre-trial injunction, which was not previously provided for in the current Patent Law nor the PRC Civil Procedure Law. The New Patent Law also stipulates the procedures for pre-trial asset preservation. Such provisions will provide clearer guidelines to courts on the relevant procedures in the future.

E. Two Newly Added Causes for Non-infringements

“Parallel Importation” is expressly permitted in the New Patent Law. The existing patent law, and also other intellectual property laws, was silent on the legality of parallel importation.

The New Patent Law also provides an exception for infringement similar to the BOLAR exception in the US, which exempts pharmaceutical companies from infringement for the manufacture, use, and import of patented drugs or medical devices for the purpose of seeking administrative approval.

Generally, the amendment of patent laws has reflected the government's efforts to curb patent infringement and to protect intellectual property. Meanwhile, the public interest and the need for a healthy and competitive market have also been taken into consideration. The enforcement of patent rights in China is has now taken a step forward in its efficiency.