美国专利侵权永久禁令制度及其启示_张玲.pdf

Abstract: Some points of view hold that permanent injunction of patent infringement in the U.S. is the same as the cessation of infringement in China, so it is necessary to deeply explore the permanent injunction from legal, legislative, judicial perspectives and then understand its characteristics in the framework of the U.S. patent law. Different from preliminary injunction and temporary restraining order, permanent injunction is a relief granted the prevailing party after the courts fi nal hearing on the merits. In judicial practice of the U.S., the Supreme Court emphasized the equitable nature of permanent injunction in the case of eBay, so it is necessary to apply the traditional four-factor test in permanent injunction relief. Our countrys cessation of infringement is different from permanent injunction of the U.S., but we shall refer to the benefi cial of permanent injunction. We should breakthrough the doctrine of universal application of cessation of infringement, construct fl exible applicable rule of cessation of infringement, suppress the “patent toll” and crack “the tragedy of Anti-commons”. Key Words: patent infringement; permanent injunction; cessation of infringement