The Reviewing Tests for Act Preservation in IP Cases
It is different that the reviewing tests for act preservation are provided in our Civil Procedure Law and IP Laws. Four tests has been established by the Draft Interpretation of the Supreme People's Court Related to the Application of Laws in Reviewing Act Preservation Cases of Disputes over IPRs and Competition, which are likelihood of success on merits, irreparable harm, balance of interests of both parties, and public interests. Overseas experience shows that the standard of ‘other harm' and ‘irreparable harm' in the Civil Procedure Law of PRC should be unified, and the latter includes already incurred harm as well as likelihood of harm. The likelihood of success on merits should be a degree of probability, at least conforming to ‘prima facie' standard instead of ‘serious question' standard. There may be interior interactions among the four tests and flexibility may be allowed in a reasonable range. Exterior interactions may also function between the four tests and other procedural mechanism, such as injunction period, limitation, security, dissolution of injunction, etc.
【CateGory Index】： D925.1;D923.4