"Certain provisions" Supreme People's Court on appeal before the cessation of the patent right infringement law problem of the Supreme People's Court on June 5, 2001 the 1179th meeting of the judicial committee. Is hereby promulgated, since July 1, 2001 will come into effect.
In June 7, 2001
Several provisions of the Supreme People's Court on appeal before the cessation of the patent right infringement legal issues (June 5, 2001 the Supreme People's Court Judicial Committee of the 1179th meeting of the law interpretation (2001) No. 20)
For the effective protection of the patent right holders and other persons of interest of the legitimate rights and interests, according to "people's Republic", "general principles of the civil law of the people's Republic of China Patent Law" (hereinafter referred to as the Patent Law), the "PRC Civil Procedure Law" (hereinafter referred to as the relevant provisions of the Civil Procedure Law), the relevant v. some issues of applicable law to stop before the invasion behavior of patent right shall be as follows:
Article 1 in accordance with the provisions of article sixty-first of the patent law, the patentee or any interested party may apply to the people's court before the lawsuit shall order the respondent to cease the patent infringement application.
Interested persons who apply, including the patent licensing contract, the licensee of the patent property rights legal heir etc.. Patent licensing contract is a licensee of an exclusive licensing contract, Licensee may apply to the people's court alone; exclusive licensing contract by the Licensee in the patentee does not apply under the circumstances, can apply.
Second pre litigation shall be ordered to stop the infringement of patent right shall apply, to the people's court jurisdiction over patent infringement cases is presented.
Article third the patentee or any interested party applying to the people's court, it shall submit a written petition; petition shall state the parties and their basic situation, application specific content, scope and grounds and other matters. The reason for the application includes relevant behavior if not promptly stopped specify the lawful rights and interests of the applicant will cause irreparable damages.
Article fourth of the applicant, the applicant shall submit the following evidence:
(a) the patent right holder shall submit the proof of its patent right true and valid documents, including the patent certificate, claims,, patent annual fee paid certificate. The proposed application relates to the utility model patent, the applicant shall submit a certificate issued by the patent administration department under the State Council for the retrieval report.
(two) the interested party shall present the relevant patent licensing contract and in proving the patent administration department under the State Council for the record material, without filing shall submit proof of the patentee, or other proof of evidence of the right.
Exclusive licensing contract licensee applies independently, shall submit evidence that the patentee waived his right to apply for.
Patent property rights heir shall submit evidential materials have inheritance or are inherited.
(three) to submit proof of the respondent is implementing or will implement the act of infringing upon the patent right of the evidence, including the accused infringing products and patent technology and accused of infringing products technical features of contrast material etc..
Fifth People's court to stop infringement of patent rights rulings matters before the appeal shall be limited to the scope of application, the patentee or any interested party.
Sixth the applicant shall provide the guarantee, the applicant fails to provide guarantee, to reject the application.
The parties to provide guarantee, mortgages and other forms of guaranty is reasonable, effective, the people's court shall permit.
The people's court to determine the scope of the guarantee, should consider ordering to stop the act relating to the product sales revenue, and reasonable storage, custody fees; the respondent to stop the act may cause the loss of staff wages, and the reasonable expenses of other factors.
The seventh stop of the relevant act in implementing the ruling process, the respondent may be due to the adoption of this measure result in greater losses, the people's court may order the applicant to append the corresponding guaranty. The applicant does not guarantee termination of append, measures related to stop.
Eighth to stop a patent infringement ruling measures taken, not remove because the respondent proposed counter guarantee.
The Ninth People's court accepted a patentee or interested party shall be ordered to stop the infringement of patent right is put forward after the application, the review in line with the fourth of the provisions, it shall make a written decision within forty-eight hours; the ruling order the respondent to cease the patent infringement, it shall be enforced immediately.
The people's court in the preceding period, need to check the relevant facts, can call one or both parties for questioning, and then promptly make a ruling.
The people's court for appeal before the order the respondent to the stop of the relevant act ruling, it shall timely notify the respondent, no later than five days.
The tenth party is dissatisfied with the ruling, may apply for reconsideration once within ten days of the receipt of the order of the day. The order shall not be suspended during the period of reconsideration of execution.
Article eleventh the people's court for the parties put forward the application for reconsideration shall be examined from the following aspects:
(a) if the applicant is being implemented or will implement the acts constitute infringement of the patent right;
(two) not to take the relevant measures, it will cause irreparable damage to the legitimate rights and interests of the applicant;
(three) the applicant to provide a security situation;
(four) and order the respondent to stop the act is harm public interests.
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