Preliminary Injunctions in China

Jiang Liwei, Judge of the Beijing Third Intermediate People's Court, has published an article titled (in the English-language translation by Yuan Renhui) Preliminary Injunction: The New Favorable of IP Litigation, in the July-August 2014 issue of China Intellectual Property Magazine.  The article can be accessed online here.  Judge Jiang discusses a recent conference sponsored by the Beijing Third Intermediate People's Court titled "Top Seminar on IP Preliminary Injunction," at which several Chinese judges and academics presented their views on a variety of topics, including (1) whether there is a difference in the legal standard for granting a preliminary injunction that is requested before the filing of an action for infringement, and an "interlocutory" injunction that (I take it) is requested after the filing of an action; (2) what sort of factors are relevant to evaluating whether the patent owner faces irreparable harm; (3) whether the patentee should have to prove, by a preponderance of evidence, a likelihood of success on the merits or only a "susbtantial dispute"; (4) whether "there should be a comprehensive consideration of likelihood of success, balance of interest, security and other factors," such that "one factor can make up the lack of the other factor"; and (5) what standards should govern claims for damages for wrongly issued preliminary injunctions, and whether such claims may be brought by third parties who are affected by the injunction as well as by the infringement defendant.  

It's an interesting and informative paper on the differing views on these issues.  I'm particularly interested in seeing how Chinese law develops on claims for damages for wrongly issued injunctions, a topic that I have discussed on this blog a few times before (see here and here).  I also found interesting the suggestion that courts may grant preliminary injunctions "[w]here the patentee does not exploit the patent, but manufactures competing products" (p.25), a topic Erik Hovenkamp and I have discussed in a recent paper.  I would note a couple of areas of disagreement, however, with some statements the article makes about European law.  In particular, the discussion of whether China should permit the use of protective writs (as in Germany) (p.24) might seem to imply that patentees file these writs, when in fact it is prospective infringement defendants who do so (see my discussion here); and the discussion of likelihood of success arguably suggests that German courts do not consider this factor (p.26), when (according to my understanding) in practice they do consider whether the infringement is unambiguous and whether the patent's validity is adequately certain (see my book pp. 243-44 and my post here).  Finally, I would note that, contrary to the statement at p.25, post-eBay some U.S. courts have held that even in trademark infringement actions the plaintiff is not entitled to a presumption of irreparable harm (though to be fair, I believe there was only one such case on point when the article was published).  These quibbles aside, the paper is quite illuminating and well worth a read.  

For further discussion on this blog of preliminary injunctions in China, see here, here, here, here, here, and here, as well as my book (pp. 351-52).