• 重庆律师法律事务服务大厅
  •  ENGLISH
  •     |    
  •  律师微网
  •     |    
  •  律师微信
  •     |    
  •  律师微博
  • |  当前位置: 首页 > 律师纪实 > 重案关注 > 正文
    律师检索 :

    Chinese Court Grants Interim Injunction Against Apple

    CQLSW.NET   2018-12-27   信息来源:TongLi Law   作者:Patrick Zheng Charles Qin
    核心提示:In an ongoing patent infringement case between Qualcomm and Apple,[1] the Fuzhou Intermediate Court granted Qualcomm’s request for interim injunction against Apple, banning the import and sale of old iPhone models in China, after finding that the tech giant’s infringement on two patents held by Qualcomm may lead to irreparable harm.

    In an ongoing patent infringement case between Qualcomm and Apple,[1] the Fuzhou Intermediate Court granted Qualcomm’s request for interim injunction against Apple,banning the import and sale of old iPhone models in China, after finding that the tech giant’s infringement on two patents held by Qualcomm may lead to irreparable harm.

    Introduction

    An injunction is a remedy which prohibits a party from doing an act or restrains from doing a threatened act, or mandatorily requires a party to do an act. Injunctive relief has existed in China for many years, particularly in the realm of admiralty and intellectual property rights, although the PRC Civil Procedure Law did not formally endorse it until 2012.[2] Injunction is classified into one type of “preservations” along with preservation of asset and evidence, with a nomenclature of “preservation of act”.

    It should be noted at the outset, that the so-called free standing injunction has not yet been introduced into Chinese law, so that Chinese court will not award an interim injunction in support of foreign court or arbitral proceedings.

    Pursuant to Articles 100 and 101 of the PRC Civil Procedure Law, parties may apply for an interlocutory injunction in the course of court proceedings or an injunction before the commencement of a trial. The court shall in principle hear the applicationinter parte, whileex parteapplication may be granted in case of urgency orinter partehearing will otherwise defeat the goal of injunction.[3]

    Decision

    This case concerned alleged patent infringement regarding resizing images and using touch-based navigation apps. Qualcomm, an American microchip maker, requested an injunction against Apple on the import and sale of iPhones using the relevant patented technology in China to the Fuzhou Intermediate Court[4](“Court”). The Court first found that the evidence submitted by Qualcomm sufficed to prove the alleged patent infringement on aprima faciebasis. The Court went on and analyzed the necessity of granting the injunction. It pointed out that there was a possibility of causing irreparable harm to Qualcomm in the absence of such relief because:

    1. It would be difficult to calculate damages later as a result of the ongoing patent infringement;

    2. Qualcomm would unavoidably suffer greater harm should the injunction not granted; and

    3. It was likely to cause irreparable harm to the business cooperation established between Qualcomm and other mobile phone manufactures.

    In light of the foregoing, the Court considered that the actual infringement was continuous, while it may take some time before a final decision on the merits can be rendered. In addition, Qualcomm had provided a bank guarantee as its undertaking to damages in case the injunction should not have been granted. Therefore, the Court granted the injunction requested.

    Comment

    Article 81 of the PRC Civil Procedure Law deals with preservation of evidence, and Article 100 empowers the court to make orders to preserve assets, or order the parties to do or refrain from doing certain acts at the request of the parties concerned, or when the court considers necessary. Article 101 further provides that an injunction may be requested if the circumstance isurgent, and the requesting party would sufferirreparable harmotherwise. A recent judicial interpretation[5] issued by the PRC Supreme Court further clarifies the factors the court should take into account when granting or denying an injunctive relief:

    1. Whether there is factual and legal basis for the injunction, including whether the intellectual property right to be protected is valid; (this is very similar to the first limb of the tests delineated in the seminalAmerican Cyanamiddecision,[6] i.e. whether there is a serious issue to be tried underlying the claim for an injunction)

    2. Whether it would impose irreparable harm to the plaintiff or it would be difficult to enforce the subsequent judgment; (this is similar to the second threshold ofAmerican Cyanamidthat whether damages will be an adequate remedy)

    3. Whether the harm caused to the plaintiff outweighs that to the respondent; (this is the similar balancing exercise conducted by common law judges)

    4. Whether the injunction would be against public interest (public policy);

    5. Whether the plaintiff has given an undertaking as to damages; and

    6. Other factors that should be taken into account.

    The judicial interpretation clarifies that “irreparable harm” under Article 101 of the PRC Civil Procedure Law means that: (1) infringement upon business reputation, right of privacy and etc. that would not be recovered; (2) uncontrollable act which imposes greater harm on the plaintiff; (3) substantial reduction on the market shares; and (4) other irreparable harm.

    Under English law, because an injunction is normally claimed upon the basis of an equitable, as opposed to a legal, right, the conduct of the plaintiff may be such as to preclude success at trial in respect of injunctive relief, e.g. for want of clean hands in making the claim. Unlike English law, there is no distinction between equity and law in China, so Chinese court does not require the plaintiff to come to the court with “clean hands”. With respect toex parteapplication, there is no requirement such as “full and frank disclosure” on the part of the plaintiff.

    Chinese law is also strict with undertaking in damages, a mandatory requirement under the new judicial interpretation,[7] which is often required to be solidified. In case the court finds for the respondent, a plaintiff who seeks an interim injunction, particularly a pre-action one, will almost always have to give an undertaking to the court in the form of cash, bond, bank guarantee or etc., with the amount largely at the court’s discretion. It also should be noted that the Chinese law includes another threshold of the public policy, namely, whether the grant of an injunction is detrimental to the public interest.

    The issuance of the new judicial interpretation manifests the PRC Supreme Court’s desire to keep in line with the international practice in terms of injunctive relief. It remains to be seen how the standards will come into play in the future.

    【Endnote】

    [1]Qualcomm Inc. v Apple Inc., Fuzhou Intermediate People’s Court, (2018)闽01初1208号.

    [2]Wenyan Ding,Application and Review of Civil Preservation of Act, People’s Judicature(Application) Issue 34 (2017), available at: http://yyfx.court.gov.cn/news/xq-622.html

    [3]Article 5, Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Deciding Interim Measures in Intellectual Property and Competition Cases (in force from January 2019), Fa Shi [2018] No. 21.

    [4]The Intellectual Property Division within the Fuzhou Intermediate People’s Court was established in 2017 and is allowed to hear intellectual property cases across regions in mainland China. (See the Reply of the Supreme People’s Court titled Fa [2017] No. 236)

    [5]Article 7,supranote 3. Please note that this judicial interpretation will come into effect from 1 January, 2019. By then, it will replace the judicial interpretation of Fa Shi [2001] No. 20 which was applied by the Fuzhou Intermediate Court concerning interim injunction of patent infringement in the present case.

    [6]American Cyanamid v Ethicon [1975] AC 396.

    [7]Article 11,supranote 3.

    延伸阅读 重庆律师网络办公室 | 值班主持律师
  • 上一篇文章:高通诉苹果案禁令主要内容及其点评
  • 网友评论 查看本信息评论 | 举报
    重庆律师网信息,更多精彩在首页,点击直达
    律师纪实
    刑事辩护受理
    刑事侦查辩护委托    审查起诉辩护委托
    刑事一审辩护委托    刑事二审辩护委托
    死刑复核辩护委托    刑事再审辩护委托
    诉讼仲裁代理
    买卖合同纠纷代理    借款合同纠纷代理
    租赁合同纠纷代理    房屋买卖纠纷代理
    建设工程纠纷代理    房产开发纠纷代理
    产品责任纠纷代理    网络侵权纠纷代理
    触电损害纠纷代理    铁路运输纠纷代理
    交通事故纠纷代理    人事仲裁纠纷代理
    离婚争议纠纷代理    财产损害纠纷代理
    不当竞争纠纷代理    网络域名纠纷代理
    特许经营纠纷代理    保险金融纠纷代理
    合伙企业纠纷代理    其他民事纠纷代理
    重庆律师 | 律师行业 | 律师纪实 | 律师实务 | 律师法学 | 律师执业 | 法律风险 | 业务办理 | 诉讼代理 | 刑事辩护 | 法律咨询 | 联系律师
    律师的甄别
    识别真假律师
    对律师的错误解读
    以什么标准判断律师是否专业
    律师的作用
    为什么需要律师
    律师表现对于胜诉到底有多大影响
    重庆律师告诉您官司打不赢的原因
    重庆律师为什么不给您胜诉承诺
    如何选择律师
    聘请律师的误区
    找律师,最忌讳说这八句话
    重庆律师不接待的十类当事人
    重庆律师收费
    重庆律师服务收费指导标准
    你知道重庆律师是如何收费的吗
    同样的事情,律师收费可能会不一样
    重庆律师对刑事案件不能风险收费
    委托流程
    重庆律师办理法律事务流程
    咨询重庆律师
    重庆律师法律事务受理大厅
    律师服务大厅
    重庆律师诉讼代理法律事务中心
    重庆律师刑事辩护法律事务中心
    重庆律师专项法律事务中心
    重庆律师法律顾问法律事务中心
    All RIGHTS RESERVED © CQLSW.NET 2008-2019  |  重庆律师网版权所有,未经协议授权,禁止复制下载任何信息,任何使用均得恪守《使用协议》联系方式  |  重庆律师业务办理平台(重庆律师网上服务大厅)