知识产权诉前禁令制度的变革与重构

The Reform and Reconstruction of the Pre-Judgment Injunction in Intellectual Property Litigation

我国知识产权诉前禁令制度在确立之初曾掀起了适用高潮,但其适用现状不容乐观,总体来看其预期作用并未能得到充分展示。制度设立具有的或多或少的被动性及指导思想的理想化在一定程度上导致了诉前禁令适用的混乱状况。当前知识产权制度仍处于持续变革中,层出不穷的技术创新对既有知识产权制度形成了较大冲击,知识产权的保护对象仍有可能扩充,知识产权诉前禁令制度的变革与重构已经迫在眉睫。知识产权诉前禁令要树立"效率优先"的理念,减轻申请人的证明义务和法院的审查责任,重构担保与反担保制度,将是否作出诉前禁令与当事人的切身利益密切联系起来,让当事人的意志与利益在诉前禁令制度中发挥一定的作用,积极扩展知识产权诉前禁令制度适用的新空间,适当兼顾对申请人和被申请人利益的平衡保护。

The rule of preliminary injunction in IP cases had been widely applied when it was initially adopted in China. However, its recent application is not that satisfied as it once was. In general, the anticipatory effect of this rule has not been sufficiently presented. The at least slight passiveness in system establishment as well as idealization of guidelines led, to some degree, to the chaotic situation of the application of preliminary injunction. For now, the IP rules and regulations have been constantly changing, and numerous newly-emerged technological innovations are bringing huge challenges to the current IP law system. Under this circumstance, the number of subject matters protected by IP law may still increase in near future, which necessitates the urgency of changing and restructuring the rule of preliminary injunction in IP cases. The new rule needs to be based on the notion of “efficiency goes first”,meaning to reduce applicants, proof burden and courts, duty of review, and to reorganize the rule of guarantee and counter guarantee. The decision of preliminary injunction should be made in connection with the parties5 interests, which, together with the parties5 will, must play a relatively important role in the couifs decision process. It is necessary to explore new occasions where preliminary injunction can apply, and do pay attention to balance the protection of the interests of both applicants and those on the other side.