Preliminary Injunctions in China: New Article by Professor Zhang Guangliang

I recently received a copy of Issue No. 1 for 2013 of China Patents & Trademarks, which includes an interesting article (also available for free online from CPT's website, here) by Professor Zhang Guangliang, titled "Impact of New Chinese Civil Procedure Law on Interim Measures in IP Civil Litigation."  As Professor Zhang notes, the Chinese Patent Act already included provisions on pre-litigation injunctions and evidence preservation measures in articles 66 and 67.  In addition, interlocutory injunctions (post-commencement of litigation but prejudgment) were available under articles 97 and 98 of the 2007 Civil Procedure Law.  WIPO has an English translation of this 2007 act here, and the relevant provisions state:

Article 97 The people’s court may, at the request of a party, order the measures for the following cases to be enforced in advance:

(1)Cases involving claims of alimonies, supports for children or elders, pension for the disabled or the family of a decedent, or expenses for medical care;

(2)Cases involving claims of wages; and

(3)Cases involving urgent circumstances that require enforcement in advance.

Article 98 The people’s court shall make sure the following conditions are met before making a ruling to enforce the property preservation in advance:

(1)The relationship of rights and obligations between the parties is definite, and the refusal of advance enforcement would seriously affect the life or business operation of petitioners; and

(2)The defending party whose property would be preserved is capable of fulfilling the obligations involved in the advance enforcement.

The people’s court may order the petitioners to provide sureties; if a petitioner fails to do so, his petition may be rejected. If the petitioner loses the lawsuit, he shall compensate the defending party whose property was preserved for any loss incurred from the advance enforcement.

Anyway, article 100 of the new civil procedure law, which went into effect on January 1, 2013, reads as follows (Professor Zhang's translation):

In cases where any action by one interested party or any other reason rendered it difficult to implement a decision or inflict other injury on an interested party, the people's court may, at the request of the other interested party, decided to preserve the former's property, order him or it to perform, or prohibit him or it from performing, a given action; where the interested party does not file the request, the people's court may also decide to take the preservatory measures if necessary.

When taking the preservatory measure, the people's court may order the applicant therefor to place  surety; where the applicant fails to do so, the application will be rejected.

After accepting the application, the people's court, in urgent situations, must make its decision within 48 hours; decision made on taking the preservatory measure should be enforced immediately.

Professor Zhang also states that old articles 97 and 98 are now embodied in articles 106 and 107 of the new law, but that in IP cases in which a party requests an interlocutory injunction Chinese courts should now cite to article 100 of the new law. According to Professor Zhang, a court should grant an application under article 100 where "it is imperative to stop the respondent's ongoing infringement" in order to prevent "irreparable injury."  (Further note:  a translation of the new act can be found at 2012 China Law LEXIS 526).

I recommend reading Professor Zhang's article in its entirety.  The new civil procedure act, of course, applies generally to civil litigation in China, not just to patent infringement cases.

I also discuss the topic of preliminary injunctions in China to some extent in my book at pp. 351-52, and I cite some additional (but pre- new civil procedure act) sources on the topic.  One of these, Douglas Clark's book Patent Litigation in China (Oxford Univ. Press 2011), also makes a point (at p.99) relevant to one of my posts from last week on remedies for wrongful patent enforcement, namely that in China if a preliminary injunction is found to have been wrongly granted, the applicant is liable in damages, which may exceed the amount of the bond.