One, the prosecution dismissed

(a) the court rejected the prosecution reason and treatment principles have been established

1, whether the plaintiff is a citizen, legal person or other organization that has a direct interest in the case

　　

(1) the court according to the provisions of the civil procedure law "forty-ninth article" on whether the plaintiff has "qualified citizens, legal persons and other organizations such as" litigation subject review

The court rejected the prosecution is based on the "Civil Procedure Law" article 108th stipulated in Article 4 (a), (two), (three) and (four) in the first half of the term, that the plaintiff in the case have no direct interest relationship, there is no specific claim and the facts, reasons, no definite defendant and does not belong to the scope of court proceedings. To the latter part of item (four), which does not belong to "governed by" should the people's court case, Beijing court, generally adopts the transfer of jurisdiction and not take the prosecution dismissed manner.

For the foreign natural person, the general need to submit a notarized by the notary organ of the country and the Chinese embassy or consulate in the country to prove the identity of the material to the court. More special is the status review residents in Hong Kong and Taiwan of our country, the current practice is not uniform: for the residents of Taiwan Province, the general practice is owned by the Taiwan provincial court civil notary for the identity cards of residents of notarization and notary book sent to the Notary Association, the the notarial association issued by the relevant proof; for the residents of Hongkong, the general is authorized by the Ministry of justice of Hongkong lawyers China for resident identity of notarization; also, living and working in Hong Kong and Macao residents directly to the court to submit the relevant documents for the public security organs of the mainland. And so on, the foreign natural person as my articles for the public security organs in mainland China is legally valid proof of identity to participate in litigation, it shall be deemed proper.

For the domestic legal person qualification review, primarily for its submission after when the annual industrial and commercial annual check of the duplicate of business license or certificate of legal institutions such as copy, the other party has objection to the authenticity of the copy, and then requires the plaintiff to submit the relevant original. Of note, there is a "suspected" certificate of legal institutions "enterprise code certificate" may not be as proof of legal person qualification valid documents. For foreign enterprises and organizations registered in accordance with the regulations, enterprises of various countries is different, some submitted in the commercial court filing of the commercial register, some submitted founded the resolution of the board of directors, This is not the only one., key is to review these documents are related to the country's public notary certificate and Chinese embassies and consulates in the country certification.

For the individual industrial and commercial households with registration number for the name of the prosecution case, there are two kinds of practice: one is the plaintiff litigation subject qualification is not suitable for the court rejected the prosecution; another approach is, is currently the most widely used approach is to judge the flaws of the plaintiff sued Shi Mingqi, grant the plaintiff will change the name for owners of personal opportunities.

　　

(2) whether the plaintiff has a direct interest in the case

(I) the violation of intellectual property rights disputes

In particular:Not to mention the utility model patent infringement litigation the plaintiff is not issued by the patent administration department under the State Council to make a search report rejected the prosecution. YesThis, the Supreme People's court has the special approval: search report, just as evidence of the utility model patent validity, not search report is issued by the plaintiff utility model patent infringement litigation conditions. The relevant judicial interpretations of the "should", intended to emphasize that the strict implementation of this system, in order to prevent too loose and lose significance. Who meet the "Civil Procedure Law" provisions of the 108th conditions of the prosecution case, the people's court shall be accepted without. But for the plaintiff insisted not to issue search report, and the defendant in the reply within the period to declare the patent right invalid request, such as no other circumstances may not suspend litigation, the people's court shall suspend litigation. (Note: November 13, 2001 [2001] min three letter word second "issued by the Supreme People's Court on the search report is filed a utility model patent infringement litigation conditions request reply")

For the cases of disputes over the right to copyright, for whether the plaintiff have the copyright to review the most complex problems, in this case a lot, directly resulted from the statistical number, copyright infringement dispute case quantity was ruled to dismiss the action of one quadrangle of Beijing all the court rejected the prosecution case almost half.The most common and effective ownership evidence generally Department has the name or the name of legal publications, copyright registration certificate. But the proof of the effectiveness of the legal publications, copyright registration certificate and other evidence is not absolute, when there is a proof to the contrary to overthrow. Therefore, the most solid evidence is the original film works, or software source program. But in the widespread use of computer writing or digital camera photography today, grasp the real meaning of the manuscript and film copyright and fewer people. In the Macraw Hill Co. and Reed Business Information Co. v. Beijing Kincaid Information System Development Co. Ltd. copyright infringement and unfair competition disputes were two case, because the plaintiff to obtain information through the download mode of evidence to prove the right content, however, due to the electronic data easy to change, the plaintiff submit notarized lawyer in Hongkong only a copy of that are consistent with the original, not notarized the data download process, namely the objective information from the information whether the plaintiff had not proved, the defendant shall not be approved cases, two case the plaintiff to the reasonable burden on its ownership is not, nor in the burden of proof within the time limit the court shall apply, therefore cannot prove their direct interest relationship with this case, the court rejected the prosecution of two.

In addition, there are several special cases need to be treated carefully:

A. infringes copyright cooperation

Right of common people alone Sue problems have also existed in the infringement of the patent right and trademark cases, but it is relatively simple, generally using additional there are other human rights co plaintiffs approach. But the cooperation of the copyright of works there are more complex, as can be divided and can't be used separately in two cases. The former one, right in his own creation part alone to bring an action in tort, no problem; the latter, take a tort action in one of the co authors, shall add the other co authors Co plaintiffs. The most difficult case is not one of the segmentation using the co authorship, unauthorized disposition of rights. This action shall be invalid. When an invalid disposition of the transferee as a plaintiff to bring an action in tort, will face the consequences of being dismissed the prosecution.

B. rights before and after "two marry a woman" caused by the infringement dispute between the assignee

This is a typical caused by the intangible intellectual property disputes, especially without approval, registration and filing work in the transfer or license rights disputes. For example, copyright owner copyright transfer to a first, and then transfer to B, then a and B have no right to have the right, if a v b infringement, logical; if not knowing their own B no, found a were using the same product, but opposed to prosecute a, then B is a suit a, should be based on the "Civil Procedure Law" article 108th (a) the court rejected the prosecution.

C. for infringing the exclusive ownership of a copyright case review

Adjacent to the right and enjoy the exclusive right is a kind of between the copyright owner and the publisher in accordance with the contract, so the only legal publications publisher signature can not prove that the ownership of the right, but must be combined with the relevant contract review, in order to finalize. The publishing contract review, tend to find problems in two aspects, and the typical case bag year involving two books each embodies one problem: the Chinese press v. Beijing Xidan pearl century department stores Ltd. infringing the exclusive copyright dispute case, the plaintiff "Xie Jianying out of copyright in extraordinary period 1966-1976" and "from Whampoa　 to the Hills - Jiang Jieshi and" two years book proprietary, and submit the two books of the press, but the related publication contract is not the author of the book or the authorized and press signed; the latter publication contract is signed with the author, but the contract related works as "Whampoa　 red", there is no evidence that "Whampoa　 red" and "from Whampoa　 to the hills - Jiang Jieshi ups and downs years" is the same works. The court holds that the existing evidence can not prove that the plaintiff has exclusive rights to the above works, the infringement of the exclusive right to publish to the defendant filed litigation, litigation subject is not suitable, the court rejected the prosecution.

(II) intellectual property rights contract disputes

Unless the plaintiff to sue for damages the legitimate rights and interests of the contract request the court to order the contract is invalid, or the plaintiff Fang Ruo not the parties to the contract, should be regarded as no direct interest in the case, but the court rejected the prosecution.

(III) intellectual property ownership dispute

There are two cases:

Rights and the A. dispute without any legal interest

B. dispute of intellectual property does not exist

 

2, no definite defendant

Such cases are few, and mainly involve the following four kinds of circumstances:

(1) the defendant One's whereabouts is a mystery

This occurs mainly in 2002 before, at present, the defendant One's whereabouts is a mystery. on grounds that the plaintiff does not meet the statutory conditions has been most court denied the plaintiff, as long as there is prima facie evidence that the defendant have the law of subject qualification and to prove that the defendant qualification has been terminated without the relevant certificate, even if the current One's whereabouts is a mystery., never ruled the prosecution dismissed, but by notice served to notify the defendant respondent. Only when the defendant belongs to the foreign body, if itself One's whereabouts is a mystery., often causing lack of related materials for the qualification, not sure whether they have the civil litigation subject qualification, it lead to reject the consequences.

(2) the defendant does not have a civil litigation subject qualification

(I) in the newspaper within the organization

Update v. Guangming Daily Press in the division of infringement of copyright dispute and China Communications Press v. Guangming Daily Press infringement of the exclusive copyright dispute case, the Guangming Daily Press was found to have no civil litigation subject qualification. But in these two cases, the court did not apply "Civil Procedure Law" in article 108th, but according to the first paragraph of article forty-ninth "citizens, legal persons and other organizations may become a party to a civil action" and "Civil Procedure Law" judicial interpretation of fortieth (i.e., for what "other organizations" judicial interpretation). The court rejected the plaintiff provisions.

(II) is a novel specially established "editorial board"

(III) in outpatient department

(3) the civil subject has not exist

The final rule to reject the plaintiff is mainly because the end of the civil subject is foreign legal person, and for the domestic enterprise legal person, go out of business, revocation, declares bankruptcy or terminates its business operations for other reasons, the rights and obligations of the successor more rule-based, even in the revocation of the business license of this very special circumstances, how to determine the status in civil litigation, the Supreme People's court has specific advice: revocation of business license of enterprise legal person, the Administration for Industry and commerce according to an administrative punishment regulations of the State Administration of industry and Commerce made illegal enterprise legal person. Corporate business license is revoked, shall conduct liquidation according to law, the liquidation procedure over and handle the cancellation of business registration, the enterprise legal person perish. Therefore, an enterprise as a legal person after being revoked the business license to be prior to the cancellation of registration, the enterprise legal person should still be considered to exist, the name can own litigation activity. If the corporate members One's whereabouts is a mystery., unable to inform the creditors to participate in the litigation, to revoke the business license of enterprise start-up unit for the prosecution, the people's court shall be permitted. The open unit legal person to revoke the business license of the enterprise, if there is no shortage of investment or transfer of assets to avoid debt injury situation, should participate in the litigation as the only enterprise liquidation, take the responsibility of liquidation (see (2000) by January 29, 2000, Law No. 24 "the Supreme People's Court on the corporate business license was revoked after, how to determine its status in civil litigation letter")

(4) the plaintiff cannot prove the existence

(5) the accused infringement behavior is not or cannot be determined, the defendant as (a kind of viewpoint thinks this decision is the substantive content, therefore, should not be dismissed the prosecution)

(6) a contract dispute case the defendant is not a contract (a kind of viewpoint thinks this decision is the substantive content, therefore, should not be dismissed the prosecution)

(7) in the case of ownership, the ownership of the state is the state prosecution, but only part of a person

　　

3, whether a specific claim and the facts, reasons

At present, the plaintiff did not accept the court "plan" proposed in the non necessary joint action in the case the court applied the "Civil Procedure Law" article 108th (three) "has specific claims, facts, reasons" rejected only prosecution.

For the plaintiff to prosecute in the case of non necessary joint action, whether must plan, should be a concrete analysis of specific situations: first, if the two part procedure the same court have the right management, can be processed in one case, calculated by the court's authority is divided in the case of assignment and litigation request fee all lawlessness; secondly, if one part of the courts have no jurisdiction, shall first ruling dismissed the plaintiff for no jurisdiction part of the prosecution, if the plaintiff at this time is still not a corresponding reduction in the claim, the claim as the narrowing of the scope of the litigation request after. But sometimes the plaintiff contained in the non necessary joint action is too complicated, leading to the court rejected the prosecution can only be divided, altogether.

 

4, do not belong to the scope of mediation in civil litigation

(1) there are clear and effective arbitration clause or arbitration agreement

(2) shall be dealt with by other organs of the dispute. For example, in March 1, 2008, there is a class of cases by the Supreme People's Court on the judicial interpretation of the way defined as belonging to the "Civil Procedure Law" the 111st paragraph (three) shall be dealt with by other organs as prescribed in item "" dispute, namely "the plaintiff to others to use the registered trademark commodities in the approved and registered trademark in the same or similar to sue", treatment is "notify the plaintiff to the relevant administrative organ for settlement".

(3) the domain name registration has been complaints but no verdict, domain name registration to the people's court

 

Two, under the jurisdiction of

(a) the specific provisions

Completely consistent with provisions of the trademark and Copyright: "joint action to implement multiple defendants tort involving different filed, the plaintiff may select one of the infringement behavior under the jurisdiction of the people's court; only action in which a against a defendant, the defendant committed the infringement to the people's court has jurisdiction";

Patent rules are range smaller: "the plaintiff filed a lawsuit against the manufacturer of the infringing products only, not against the seller, the infringing products manufacturing and sales are not consistent, manufacturing to the people's court has jurisdiction; to manufacturers and sellers to co defendants indicted, sales to the people's court has jurisdiction". In other words, is the place where the defendant has his domicile as a connection point is unconditional, and the infringement (manufacturing and / or sale) as a connection point is conditional, namely the implementation of tort actors in the ground (manufacturer or seller) must be one of the defendant or the defendant. The judicial interpretation of the provisions in the patent law for the plaintiff deliberately to buy infringing products manufacturing connection point and patent infringement case led to too concentrated to the jurisdiction of a few court phenomenon, the effective inhibition.

 

(two) treatment of common problems of several practice

1, determine the place where the defendant has his domicile

"Civil Procedure Law" provisions of article fourth of the judicial interpretation, the citizen's domicile is refers to the citizen's domicile, legal person's domicile is refers to the main business of legal person or the main offices. Therefore, legal person's domicile is not certainly the business registration address registration license, but in general, the absence of proof to the contrary, the presumption of its business license registration registration for its domicile, when both inconsistent, should be based on its principal place of business or the winner to administrative office is located. In practice, if the defendant to the main business parties or major offices and business license registration registration does not agree and not in the courts of jurisdiction objection jurisdiction grounds of the application, the court will usually transfer the case to the jurisdiction of the court. Specifically, the court generally from the following aspects: the review on its main business activities that develop the main business period, the main offices moved to maturity, the claims of their business places, the size of the area, practitioners, many business scale etc..

2, to the seller for intellectual property infringement litigation defendants under the jurisdiction of the court to determine the

(1) the seller determined

Producers accused in practice for the vendors of defendant court jurisdiction objection reason and that sales of infringing products than its production, the defense in the jurisdiction objection review usually are not acceptable, because the idea is tort defense, not the jurisdiction review content rights objection procedure, should be in the tort action entity during the trial against the plaintiff as tort reasons.

(2) determine the sales

Although the "Regulations" on the trial of patent dispute case applicable legal issues specified in section fifth, selling infringement of patent infringement case to be divided into sales implementation and results occur, but given the infringement of trademark right, copyright infringement cases have not the product sales results as a tort, and the sales result is too broad, if the consideration, unified standard is not easy. In the infringement of the patent right, trademark right, copyright cases in the judicial practice, the general view that is delivered sales behavior is the result of the infringing products, the implementation of sales behavior is the result or tort results should confirm according to sales area, sales act is carried out and the results of practical significance there is No.

(3) using sales "pull over" phenomenon

Some of the rights of people to avoid foreign manufacturing commercial and the court may exist in the "local protectionism", deliberately Beijing "manufacturing" to sales stayed under the jurisdiction of the more serious phenomenon. This phenomenon, the different processing method in a Beijing court, the first approach is to court if the plaintiff, according to co defendant to determine jurisdiction is not suitable, can direct the case to a court of competent jurisdiction; the second is based on the first approach, that should the court rejected the plaintiff to determine the jurisdiction of the defendant of litigation, and then put the case to a court of competent jurisdiction, or the defendant is unfair; the third is, the court rejected the defendant objection to jurisdiction, the reason is as long as the plaintiff accused the defendant of the appellate court jurisdiction engaged in acts of infringement and the place where the defendant has his domicile jurisdiction in our hospital, the courts have jurisdiction, the defendant is actually engaged in the Plaintiff alleged infringement or whether the act of infringement, are the contents of the trial, the jurisdiction objection to trial should not proceedings. At present, the supreme court opinion is "to strengthen the defendant qualification review, case with a plurality of the defendant, and the plaintiff has substantial controversy to the determination of jurisdiction, prevent the nominal defendant, jurisdiction over cases."

3, request confirming not tort of intellectual property litigation and how to determine the jurisdiction

One view is that the nature of infringement, shall be under the jurisdiction of the court at the domicile or infringement court, Beijing High Court made it clear that in the second instance verdict, confirming not tort litigation request, is essentially a confirmation request of the plaintiff, in fact a actions are infringement of a right to enjoy some of the others and to the people's court, the people's court such dispute applicable laws and civil tort disputes is consistent, therefore, the affirmation of no tort is a tort dispute; another view from the lawsuit structure, it does not belong to the infringement, such cases shall be under the jurisdiction of the general principles according to the "Civil Procedure Law" twenty-second article about territorial jurisdiction to determine that the defendant has his domicile, court has jurisdiction, the defendant has no domicile in China the defendant lawsuit, according to the "special provisions of the civil procedure law" in foreign civil procedure to handle.

4, the grade jurisdiction

    At present, only the letter of law (1995) No. 95 "on the jurisdiction objection should be how to deal with the problem of the letter" can be used as the basis, which states: "the parties level jurisdiction objection to jurisdiction, the court should carefully review, there is no jurisdiction, shall transfer the case to the competent authority the court, and inform the parties, but not for the ruling. The court refused to transfer, the parties to the superior court reflect the situation and put forward the objection, the court shall investigate, research, and make the corresponding decisions, such as the case is transferred to the necessary, it shall notify the lower court to transfer the case to a court of competent jurisdiction; the lower court refused to transfer, make the entity judgment, the court shall revoke the decision of the lower court on grounds of procedural law, and to transfer the case to a court of competent jurisdiction." Shortcomings of this provision is only prescribed, "there is no jurisdiction" should be how to deal with, without provisions should be how to operate by the court of appeal after review found themselves "does have jurisdiction". Many courts on the basis of it, the court has a clear view of the grade jurisdiction court ruling establishment not to produce, so when the level jurisdiction is not established the court should not issue rulings, but one quadrangle of Beijing which has a different approach, which issued a ruling to overrule objections, but the court rejected the reason is divided into two: one is to explain why in our hospital has jurisdiction, another is that the parties have no jurisdiction objection.

 

Three, stop

In the design patent infringement case in the trial, if the defendant also apply for the declaration of the patent is invalid, under normal circumstances, the judge to review the copyright infringement case a defendant to the State Intellectual Property Office of the Patent Reexamination Board submitted for comparative file is invalid patent, you can estimate the likelihood of the appearance design patent is invalid there are. If the probability is invalid, then copyright infringement case judge would justify suggested as patent plaintiffs withdraw prosecution, see the relevant comparative documents the plaintiff will generally choose rationally the withdrawal of the suit; if less likely to be invalid, the general tort cases will not be to suspend the trial. Therefore, the possibility of design patent infringement case was suspended with respect to the utility model patent much smaller.

Compared with patent, trademark infringement case because the defendant to apply for revocation of the trademark registration and stop infringement case situation much less. The registered trademark rights in the state of relative stability and cancellation of registered trademark administrative review time long, from two aspects the judges want to dare not easily stop trademark infringement case. In trademark infringement cases also appeared on the plaintiff has filed civil tort action prior to the industrial and commercial bureau complaint accused tort and asked to stop infringement, compensation for losses by suspending civil tort cases, to stop the situation in recent years has been relatively rare, common practice is to present the administrative organs of the report and the court to civil tort litigation can run parallel to the civil tort cases, courts and administrative organs according to law and tort, the two can be mutual exchange of needed products, the sharing of resources in the evidence collection, no interference with each other in the processing results.

Stop right and copyright infringement cases, usually involving copyright disputes, and the ownership dispute is other dispute case to trial, the case was suspended a great possibility.

 

Four, the preservation of the proceedings and the temporary injunction

(a) the preservation of the proceedings

1, the preservation of property

Property preservation shall be divided into before litigation and litigation preservation two. According to the Beijing first intermediate people's court within different division, preservation before an action is responsible for the general court, Intellectual Property Tribunal dealing mainly in v. to petition for property preservation, the preservation of objects to the bank account of cash, the approach taken for the frozen in the bank to bank account. A Beijing Court Property Preservation for general order the applicant to provide a guarantee, property preservation is to freeze accounts of the other party, generally require the applicant to provide a guarantee of an amount equivalent to the amount of claim. But in some cases, the judge considering various factors, order the applicant to provide a guarantee amount is only request to freeze accounts of the other party the amount of 50% or less, this is not always the case, which belongs to the exception. In addition to the more common the freezing of bank accounts of property preservation method, in view of the real estate and court patent, trademark and other intangible property to take preservation measures. Preserved for patent and trademark of the intellectual property of intangible property, relevant authorities of the Supreme Court and the country has made and developed a variety of formal reply, judicial interpretation and regulations. (such as (2000) Law No. third letter to the Supreme People's court trial "of intellectual property rights to the State Intellectual Property" on how to assist in the implementation of the court property preservation order letter > reply "(January 28, 2000); (2001) the people three letter word first the Supreme People's court of civil trial third court" of National Knowledge Property Office "on the solicitation of assistance in the implementation of the right of patent application property preservation order letter" reply "(October 25, 2001); the State Intellectual Property Office Announcement No. seventy-ninth, the State Intellectual Property Office issued the" about to assist in the implementation of the patent application right of property preservation order "(November 26, 2001); (2001) interpretation of law interpretation 1, the Supreme People's court" on the people's court for property preservation of the registered trademark "(effective January 21, 2001); (2001) the people three letter word third the Supreme People's court civil trial third court" about the problem of property preservation and execution of the exclusive right to use a registered trademark, the reply "(January 9, 2002))

2, the preservation of evidence

(1) evidence preservation measures in the basic conditions for the cases of intellectual property

Although the preservation of civil evidence can also be divided into litigation preservation and preservation before an action, but with the property preservation, preservation before an action is responsible for the general court, tribunal dealing mainly with the preservation of evidence in litigation.

The court met for the adoption of evidence preservation measures case in the trial practice mainly involves the following types:

A. computer software copyright infringement dispute case, the plaintiff may apply to the court for the preservation of the computer or storage device, to prove that the defendant the plaintiff's computer software copy;

B. commercial secret infringement dispute case, the plaintiff may apply to the court for preservation of the business or technical documents, to prove that the defendant is stolen or used commercial secret of the plaintiff;

C. involved in the method of the invention patent infringement dispute case, the plaintiff to apply to the court for the preservation method often accused of the same product, to prove that the defendant is the implementation of the patent right of the plaintiff;

D. in various types of intellectual property infringement case, the plaintiff may apply to the court for the preservation of the contract, the financial account books and relevant documents, to prove that the defendant is obtained for the tort of profit.

 　(2) for evidence preservation measures in practice

The relationship between A. confuse the evidence and the court investigation evidence

In some cases of infringement of the rights of people, have applied to the relevant administrative departments to the infringement of administrative punishment, being accused of patent infringement and profit evidence, at the administrative department for file materials at this time, the parties may request the court to obtain relevant evidence, and shall not apply for preservation of the evidence. In addition, under normal circumstances, the parties to the case of intellectual property in the prosecution and the defendant for the preservation of evidence, to prevent the accused to transfer, hide or destroy evidence, for the evidence preservation in court is often served a copy of the indictment to the defendant at. Due to the preservation of evidence application review and measures need time, therefore, notify the defendant respondent time later than did not take the preservation of evidence of the case, the process of case must be affected.

B. claim evidence preservation performance not just as one wishes

For the preservation of the respondent's financial books, original vouchers, sales contracts, as the respondent for profit or loss as the basis for calculation. However, because the legal consciousness of a considerable number of people is not high, lack or social integrity, many cases in which the respondent for various reasons refused to cooperate with the court's work, such as an excuse to financial personnel with incomplete financial books not in cannot provide or, and the court in the face of coercive means to use the case when the not much, not only caused the preservation purpose can not be achieved, but also a great waste of judicial resources.

The determination of the amount of c. guarantee there is no uniform standard, the difference in practice more. Under normal circumstances, if the need to preserve evidence of the value of easy calculation or judgment in determining the amount of security, and not too many difficulties and disputes, the parties also easy to understand. However, some for the preservation of evidence is very difficult to determine the market price, especially relates to enterprise's customer list, contract or financial records and other evidence, the court is difficult to predict if the preservation of error will be caused to the other party's loss. At this time, the court determined according to the amount of security amount of target, and some require the applicant to provide and the amount of target equivalent guarantee, others require the applicant to provide a guarantee in accordance with a certain percentage amount of target, resulting in some cases due to the requirement of the guarantee amount is too high, the applicant had to be abandoned for evidence preservation, difficult to determine the case the facts.

D. some cases the respondent is unable or unwilling to cooperate with the court ruled that the need to provide security to determine the evidence, at this time, the court generally taken by the deadline for submission of evidence preservation, and told the legal consequences not submitted, the time limit can not be too long, the visual cases identified 3 to 5 days, to avoid being the applicant to forge or tamper evidence.

 

(two) the temporary injunction

1, the basic situation

"Patent law", "trademark law" and the "copyright law" since the revised increase the intellectual property rights in the rights and interests have been infringed may apply to the court for the pre-trial provisional measures, the modified content after the entry into force of the 2001 to 2006 June, the Beijing court accepted 8 intellectual property of Interim Measures for, mainly concentrated in the infringement of trademark right and patent right dispute case. The admissibility of the case of intellectual property rights provisional measures less, but the actual decision to take temporary measures case is only one action in the case of the ban. Over the same period, Beijing court handled 26 pieces of Interim Measures of intellectual property in the application, only 2 applications were ruled to take measures to stop the infringement lawsuit, accounted for only 7.69%, and the 2 cases are the trademark dispute.

2,The main problems and causes

(1) before suing to stop the infringing act apply for registration and examination of the division of labor is not science

The court the case before the application materials court handed over to the court, whether by court review may take action before the end of the tort action, the review of the way is mainly composed of the specified by the judge, judge for the application materials in written examination, when necessary, can be summoned to court asking the applicant, the court the review considered before action to stop the infringing act may take measures, on the court to be placed on file; otherwise, it shall not file. For not filing the case application, by the judges for the applicant informed verbal, not legal documents, the relevant application materials to the case accepting division. The division of labor, leading to over whether to take measures to review indistinct, relevant records and judicial statistics cannot be.

(2) before suing to stop the infringing act measures for substantive examination standard is not clear

The relevant legal provisions "irreparable harm", should be the court to take substantive measures core condition to stop the infringing act, but the present review the court of Beijing city for this condition is often a mere formality, is often misinterpreted as "infringing" and "win to" to review, and make up for not to the damage is difficult to damage the legitimate rights and interests of full restitution, damages may not obtain enough relief; the infringer did not have the ability to compensate the loss of the right people, including personality damage and mental damage components closer to the "factor is difficult to make up for review".

(3) 48 hour examination deadline calculation methods are not unified

According to the judicial interpretation of the provisions, the court accepted the appeal before the cessation of infringement of intellectual property application, upon examination in accordance with the provisions of judicial interpretation, it shall make a written decision within 48 hours. On how to determine the starting point for 48 hours, with a different approach in practice, some people think should be calculated began accepting applications from the court; some say the ruling time, namely the review by the parties in accordance with the provisions of judicial interpretation, it shall make a decision within 48 hours.

 

Five, the affirmation of no tort acceptance

The alleged infringer mention the affirmation of no tort should have three conditions: (1) the right people have sent the infringement warning, and the alleged infringer does not recognize their own behavior constitute infringement; (2) right to delay the case to the people's court or to the relevant intellectual property administrative departments (complaints without justified reasons; 3) the patent delay behavior may cause damage to the allegedly infringing the rights and interests of the people.

Notable is, confirmed the specificity does not infringe the intellectual property litigation cases in the case type Co., whether it can be expanded to all types of intellectual property, questionable. From the relevant content of the civil procedure of the intellectual property rights the court's view, to confirm the court clearly admissible non infringement of intellectual property litigation includes confirming non infringing the patent litigation, confirming non infringing trademark right and action of confirming non infringing copyright lawsuit. For other such as commercial secret, the name of the enterprise, the famous product specific name, packaging, decoration and other intellectual property rights, whether can be the same as confirming non infringing intellectual property litigation shall accept the application, there are different views in the judicial practice.