Last month, we had reported on the Indian Supreme Court’s observations on parties in IP cases squabbling over temporary injunctions. Apparently, this view is shared by China’s Apex Court as well. In a short article, Peter Ollier of Managing IP reports a formal opinion expressed by China’s Supreme People’s Court on April 21 on Intellectual Property adjudication.
It however comes from a perspective different from that of the Indian Supreme Court; it requires Chinese courts to exercise caution in granting interim injunctions, which some feel is aimed at shielding the domestic industry from the effects of recession. In cases where the defendant claims that he has been unfairly accused of IP infringement, the Court has set out guidelines for the grant of a declaratory judgment.
This is intended to prevent plaintiffs from using infringement actions as a ruse to gain access to the trade secrets of the defendant (In this context, s.104A(2) of the Indian Patents Act, 1970 provides for a protection of the defendant’s manufacturing or commercial secrets).
The opinion talks of “public interest” being cited by the defendant against grant of an interim injunction and states that such a ground ought to recieve close examination and must be considered only where it concerns public health, environmental protection or “any other social interest”. The opinion also sets out that higher damages may be considered as an alternative to grant of a permanent injunction. If I have understood it right, what this means is the defendant may have to cough up a hefty amount, but can continue to infringe the IP right. If this isn’t the right interpretation, this certainly beats me! The opinion also emphasises the use of laches and acquiescence to refuse temporary injunctions to right holders.
This Opinion is probably reflective of the position of local authorities whose approach to IP enforcement has been diplomatically termed as “lenient” and the purpose of which is to ensure that people don’t lose their jobs in these hard times. The implementation of this opinion by subordinate courts remains to be seen….
