Thursday, September 15, 2022

China Patents & Trademarks Issue on Injunctions and Proportionality

Injunctions seem to be on everyone's mind these days.  The most recent issue (No. 3, 2022) of "China Patents and Trademarks" has three articles on the topic, as follows.  (Unfortunately, the articles are not available for upload on the publication's website, at least not yet.)

First, there is an article by Wei Lizhou titled Proportionality Defense in Claim for Injunctive Relief:  Interpretation of the Newly Added Third to Fifth Sentences of Section 139(1) of the German Patent Act.  (This article, like the other two, is available in the original Chinese and in English-language translation.)  The author discusses the relevant considerations in evaluating whether injunctive relief would be disproportionate; the claim for compensation during the period in which injunctive relief is stayed; the possibility of the proportionality defense serving as a fallback in SEP cases in which the competition-law defense fails; and the (likely  case-by-case) impact of the proportionality defense on other infringers within a chain of distribution.  The article provides a good, concise summary of the amendment's effects, in my view.

Second is an article by Luo Li titled Application of the Proportionality Test to Injunctive Relief for Injunctive Relief for Patent Infringement in the U.S.    

Third is an article by Zhang Guangliang and Lv Lingrui titled Application of the Principle of Proportionality to Injunctive Relief for Patent Infringement in China.  The authors argue that Chinese case law involving patents and utility models have implicitly incorporated and applied the proportionality principle, and thus it is unnecessary to follow Germany in introducing the principle explicitly into the patent statute.  The authors provide an interesting discussion of Chinese case law addressing whether or under what circumstances to deny the prevailing patent or utility model owner a permanent injunction. 

No comments:

Post a Comment