Latest Developments in Application of “Cessation of Infringement” as Remedy against Patent Infringement
Legal Affairs Department of China Patent Agent (H.K.) Ltd.
In patent infringement cases in China, with an infringement found, “cessation of the infringement” is one of the commonest liabilities. In the U. S., similar patent infringement remedies also exist, namely, the “permanent injunction”. In 2006, the U.S. Supreme Court reaffirmed, in eBay Inc., et al. v. Mercexchange, L.L.C. (eBay case),1 the condition for the application of permanent injunction, which aroused wide attention and discussion. In the subsequent cases, the US courts came up with a more comprehensive interpretation of the circumstance of non-applicability of the permanent injunction in the presence of patent infringement. But, cases are rare where courts in China did not apply permanent injunction in case of established patent infringement. Theoretical exploration and practice of not applying “cessation of infringement” are very limited and rarely seen in the judicial and academic communities. In December 2009, the Supreme People’s Court made its final decision in Wuhan Jingyuan v. Japanese Fuji of the Water and Huayang Electric Industry (Jingyuan case), specifying that, in applying the cessation of infringement remedy, account should be taken of its impact on the public interests or equity, namely the remedy did not apply where it had major impact on the public interests. The Wuhan Jingyuan case will have a great impact on the future judicial practice in China, as the eBay had in the U.S.. Following is a scrutiny and discussion of the issue of application of “cessation of infringement” as a remedy against patent infringement and the limitation thereof with reference to the relevant US practice.
I. US practice of permanent injunction
1. Pre-eBay
The permanent injunction is a remedy at the law of equities, not specially applicable to patent infringement litigation. Through years of judicial practice, judges’ view on explanation of the condition for the application of permanent injunction can be found in a variety of cases heard by the US courts, and a relative mature judgment standards have finally come into shape in the judicial community in the country, as is shown in the Weinberger v. Romero-Barcelo2 and Amoco Production Co. v. Gambel3, in which the courts took the view that whether to apply the permanent injunction should be determined under the principle of equity and according to the specific facts of a case, rather than applying it to a special category of infringements4.
To be specific, in the patent community, under the US Patent Act, “the patent right is essentially private property”5, and “a patentee is entitled to exclude others from making, using, offering for sale or selling his invention”6. Said right, however, cannot be construed as the cause of “natural” grant of an injunction in patent infringement litigation. The US Patent Act expressly says that the courts “may” decide whether to grant permanent injunction “according to the principle of equity” in patent infringement litigation7.
But, before eBay case, there were precedents where injunctions were not granted out of consideration of such factor as public interests8, but when patent infringement was established, a court more tended to grant the permanent injunction. As in the Metabolite Labs., Inc. v. Competitive Techs., the district court decided to grant the injunction when it found no sound reason for denying it. The Court of Appeal for the Federal Circuit (CAFC) held that the decision was reasonable since “an injunction should be issued once infringement has been established unless there is a sufficient reason for denying it”9.
2. eBay case: reaffirming the “four-factor test”
In hearing the eBay case, the CAFC believed that "general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances." We granted certiorari to determine the appropriateness of this general rule”10.
Directed to the practice, the Supreme Court believed that it was necessary to reiterate the well-established principles of equities, so it granted certiorari, and stressed, in the decision made after hearing the case, according to the well-established principle of equities, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.11.
Ever since, the US courts judicial practice with regard to permanent injunction has begun to turn to a different direction. Directed by the eBay case, the US court at all levels, including the CAFC, now follow the four-factor test in handling patent infringement cases. Even so, permanent injunction remains to be the commonest outcome of these cases. Of the 75 decisions the US courts made by citing the eBay case decision from 15 May 2006 to 15 June 2009, about 70% of these cases were heard with injunction issued12. Besides, what mattered was not whether to issue an injunction, the court would also consider, in their decisions, such matters as the scope of application and effective time of injunction. The remedy of permanent injunction has been under constant delineation, specification and amplification.
3. Limited Partnership and Infrastructures for Information Inc. v. Microsoft Corporation: developments of four-factor test
We have to say that the four-factor test in the eBay case is a relatively generalised determination standard. In the judicial practice, with cases quite different from one another, the courts still need to decide which factors should be considered according to the four-factor test, in the Limited Partnership and Infrastructures for Information Inc. (i4i) v. Microsoft Corporation13 closed in December 2009, the CAFC came up with a more detailed, specific interpretation concerning the application of the four-factor test. Following is a brief of the case.
The plaintiff, (i4i), owner of a US patent for editing a mark up language XML on computer, argued that Microsoft used its patented technology in its Microsoft Word application, and infringed its patent right, and filed a suit in the court of the Eastern District of Texas in 2007. During the first-instance hearing, the District Court supported i4i’s motion for issuance of a permanent injunction, and held the defendant liable for damages. It is worth noting that the District Court imposed restriction on the scope of the injunction by specifying that “it applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction's effective date may continue using Word's custom XML editor, and receiving technical support”.14
Dissatisfied, Microsoft appealed to the CAFC, in 2009, and the court discussed whether the injunction should be issued and the scope of the injunction according to the four-factor test. Finally, except the time for the injunction to take effect, the CAFC recognised and upheld the District Court’s decision.
As for the “irreparable injury”, the CAFC concluded that past harm to a patentee's market share, revenues, and brand recognition was relevant for determining whether the patentee "has suffered an irreparable injury". In the case, i4i and Microsoft were direct competitors in the custom XML market, and i4i lost market share as a result of the infringing Word products. The infringing Word products rendered i4i's software obsolete, as a result of which i4i changed its business model to make software that complemented Microsoft 's infringing products, which was sufficient to show that the plaintiff “had suffered an irreparable injury”15.
As for the “inadequate remedies at law”, the CAFC concluded It was not an abuse of discretion for the district court to conclude that monetary damages would be inadequate. In this case, i4i was practicing its patent, and did not show any intent to license it. It only suffered a loss of market share, brand recognition, and customer goodwill as the result of the defendant's infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market, as occurred here. The district court found that Microsoft captured 80% of the custom XML market with its infringing Word products, forcing i4i to change its business strategy. The loss associated with these effects is particularly difficult to quantify. Difficulty in estimating monetary damages is evidence that remedies at law are inadequate16.
As for “balance of hardships”, the CAFC believed that both parties’ sizes, products, and revenue sources might be properly considered. In the case, i4i was a small business, and the patent in suit was central to i4i's business. Because most of i4i's products were based on the '449 patent, i4i's market share, revenues, and business strategy were similarly tied to the patented method. These same factors revealed that the infringing custom XML editor functionality related to only a small fraction of Microsoft's sizeable business. The far greater importance of the patented method to i4i, combined with the demonstrated past effects of infringement on i4i, favored issuance of a permanent injunction. The district court's analysis properly ignored the expenses Microsoft incurred in creating the infringing products. Similarly irrelevant are the consequences to Microsoft of its infringement, such as the cost of redesigning the infringing products. Id. As we explained in Broadcom, neither commercial success, nor sunk development costs, shield an infringer from injunctive relief. Microsoft is not entitled to continue infringing simply because it successfully exploited its infringement.17.
As for “the public interests”, the CAFC took the view that the touchstone of the public interest factor was whether an injunction, both in scope and effect, strikes a workable balance between protecting the patentee's rights and protecting the public from the injunction's adverse effects. The CAFC pointed out particularly that here the relevant “public” included not only individual consumers, but also companies that licensed infringing Word products and manufacturers that are part of Microsoft's distribution channels. It is proper in the case to have carved out users who purchased or licensed infringing Word products before the injunction's effective date, and the injunction's tailoring had minimized disruptions to the market and the public18.
Finally, affirming the legality of the district court’s grant of the injunction and the reasonability of the scope of the injunction, the CAFC gave its different view on the injunction effective date. Upon analysis of the record evidence, the CAFC held that the only evidence relevant to the injunction effective date was Microsoft’s employees’ testimony that it may take five months to implement any injunction., but the plaintiff did not present any evidence to the contrary. For the court, it was baseless for the issued injunction to take effect 60 days from the date of order, and it modified the injunction effective date to 5 months from the date of this order19.
II. “Cessation of infringement” in China
The Chinese patent-related laws and regulations do not specifically provide for the application of cessation of infringement in patent infringement litigation. It is generally believed that decision on ceasing an infringement in such litigation under the General Principles of the Civil Law as of 1986, Article 118 of which provides: “where the rights of authorship (copyrights), patent rights, exclusive right to use marks, right of discovery, rights of invention or rights for scientific and technological research achievements of citizens or legal persons are infringed by such means as plagiarism, alteration or imitation, they shall have the right to demand the infringement be ceased, its ill effects be eliminated and the damages be compensated for; and Article 134 specifies that cessation of infringement is one of the main civil liabilities.20 Article 15 of the Infringement Liability Law enacted in December 2009 and entering into force on 1 July 2010 also provides that cessation of infringement is one of the main civil liabilities21.
In the past judicial practice in China, once a patent infringement is found, the court, under most circumstances, would order the infringer to cease the infringement. In the very few post-Jingyuan cases, the courts did not support patentees’ claims for cessation of infringement when patent infringement was found.
1. Precedents not supporting cessation of infringement claims
Zhuhai Jingyi v. North International and Shenzhen Airport
In January 2005, the Guangdong Province Shenzhen City Intermediate People’s Court closed a utility model patent infringement case (case No.587)22. In the case, the plaintiff, Zhuhai Jingyi Glass Engineering Co., Ltd. (Zhuhai Jingyi) owned a patent for a utility model of a screen wall connecting device (ZL97240594.1) for supporting and fixing screen walls, especially a screen wall connecting device for the upper end of such a wall. The defendant, North International Cooperation Co., Ltd. (North International) made the infringing screen wall connecting device, and used it in the screen wall project of reconstruction and expansion of its terminal it undertook for the defendant Shenzhen Airport Co., Ltd. (Shenzhen Airport) to construct it for its terminal. Zhuhai Jingyi requested the court to hold the two defendants liable for ceasing infringement, and compensating of damages, and paying for patent royalties.
The court concluded that North International’s unauthorised manufacture and use of the patented products constituted patent infringement, and held North International liable for immediate cessation of the infringement and compensation of the damages. The court also held that the Shenzhen Airport was a business, and the terminal its venue of business; hence its use of the patented product was business use thereof; and its use of said product for business purpose also constituted an infringement, and it should immediately cease the infringement under law. Considering that it was practically impossible for the Shenzhen Airport to cease using the patented product, the court held it liable for paying for the reasonable royalties for using the patented product.
Fischerwerke Arthur Fischer GmbH & Co. KG v. Shanghai Luming, Shenyang Kaixing and Shanxi Museum
In September 2006, the Shanghai No.2 Intermediate People’s Court closed Fischerwerke Arthur GmbH & Co. KG (Fischerwerke Arthur) v. Shanghai Luming, Shenyang Kaixing and Shanxi Museum, an invention patent infringement litigation (case No.186)23. The plaintiff Fischerwerke Arthur owned a patent (ZL91100552.8) for a fastener which related to a metal fastener specially suitable for fixing roof boards. The defendant, Shanghai Luming Building Material Co., Ltd. (Shanghai Luming) sold the plaintiff’s products to Shenyang Kaixing Decoration Engineering Co., Ltd. (Shenyang Kaixing), with the documents, such as Quality Guarantee and Certificate of Origin presented. Shenyang Kaixing imitated the products and the relevant certificate, and used both the authentic and infringing products in the project of installing stone screen walls for the defendant Shanxi Museum. Therefore, the plaintiff sued them all, requesting the court to hold them liable for cessation of infringement and damages.
The court found defendant Shanghai Luming’s sale of the legitimate products did not constitute an infringement, nor was it possible to determine that Shenyang Kaixing had facilitated the infringement. Shenyang Kaixing’s acts of making and using, in the project, infringing product without authorisation, and finally delivering, for use, the screen wall work containing said infringing products were acts of selling and using the infringing products for business purposes, and infringed the plaintiff’s patent right. Given that Shenyang Kaixing admitted before court it still had some infringing products in stock, the court ordered it to cease infringement, and not to sell and use them any more, and held it liable for damages. The court also found that Shanxi Museum used the building containing the infringing product, but the use was not for business purpose, so its act did not constitute an infringement.
Fischerwerke Arthur GmbH & Co. KG v. Shanghai Qifeng, Sun Chenglai, Shanghai Hongli, and Hongqiao Development Zone
In December 2006, the Shanghai No.2 Intermediate People’s Court closed an invention patent litigation instituted by Fischerwerke Arthur also involving patent (ZL91100552.8) for fastener (case No.12724). In the case, the defendants Shanghai Qifeng Stainless Steel Standard Parts Co., Ltd. (Shanghai Qifeng) and Sun Chenglai made the infringing fastener and sold the infringing product to the defendant Shanghai Hongli Decration and Design Engineering Co., Ltd. (Shanghai Hongli) without license from the plaintiff. Shanghai Hongli used the infringing product in the wall slabstane in the construction of the Xinhongqiao Building it undertook for the Shanghai Hongqiao Economic Technical Development Zone Integrated Development Co., Ltd. (Hongqiao Development Zone), and the defendant Hongqiao Development Zone used the Hongqiao Building constructed with the infringing product. The patentee sued them, claiming for cessation of infringement and compensation of damages.
The court found that Shanghai Qifeng and Sun Chenglai made and sold the infringing product, and were liable for cessation of infringement and compensation of damages. Shanghai Hongli’s acts of using the infringing product in its construction and delivering, for use, the building constructed with the infringing product were act of selling and using the infringing product for business purposes, and constituted an infringement of the patent right. But since all the infringing products were used in the walls of said building, it was impossible to require Shanghai Hongli to cease the infringement. Hongqiao Development Zone’s use of the building constructed with the infringing product was not one of the infringing product for business purposes, so it did not infringe the patent right.
Brief analysis
The three cases heard respectively in Shenzhen and Shanghai were somewhat similar in that they all involved a building member installed in buildings and difficult to detached therefrom, and all involved several defendants, such as contractors using the infringing products and owners/users of buildings containing said infringing products. While the plaintiffs requested the courts to order the defendants to cease making, selling and using the infringing products, the latter did not support all its claims.
Directed to the contractor in case No.587, the Shenzhen Intermediate People’s Court decided that the contractor making and using said infringing products should cease infringement. In case No.186, the Shanghai No. 2 Intermediate People’s Court’s decision on cessation of infringement was limited to the infringing products in stock. In case No.12, the same Intermediate People’s Court’s decision against the contractor was directed to the defendant’s act of using the photographs of the infringing products to offer for sale on its corporate website; As for the infringing products used in the installation, the court’s position was very clear. Since it was impossible to cease the infringement with respect to the infringing products, cessation of infringement did not apply.
On the other hand, as for the owners/users of buildings, while the courts did not order them to cease infringement, the courts in Shenzhen and Shanghai made diametrically different determination in respect of the acts in suit. For the Shenzhen court, since the user of the building involved was a business and the building its venue of business, its use of the building containing the infringing products constituted one of the infringing products for business purposes, and it should be liable for infringement. In way of imposition of the liabilities, the Shenzhen court concluded that it was practically impossible to cease the infringement; hence payment of royalties be imposed instead. By contrast, the Shanghai court decided that the act of the building owner’s use of the building containing the infringing products was not one of using the same for business purposes; hence under Article 11 of the Patent Law, it did not constitute patent infringement, and the user was not imposed any liabilities, such as that for cessation of infringement.
While these identical cases were adjudged differently, the courts took substantially the same attitude toward the infringing products installed in and difficult to be detached from the buildings involved, that is, it was undue to decide on cessation of infringement in respect of this part of the infringing products. While the courts did not fully explain why they made their decisions this way, as the cases clearly show, it was not difficult to see that the courts took some in-depth consideration when making their decisions. For the Shenzhen court, Shenzhen Airport’s use of the building containing the infringing products constituted an infringement, and it should be held liable therefor, but the court found cessation of infringement “practically impossible”. Here the court was obviously aware of the adverse impact of cessation of infringement on the pubic interests, though it did make any explanation in its decision.
2. Wuhan Jingyuan Case
Brief of the case
The plaintiff, Wuhan Jingyuan Envirnmental Engineering Co., Ltd. (Wuhan Jinyuan) owned a patent for the invention of a method for 曝气法 sea watersmog desulfurisation a曝气 means. The defendant, Huayang Electric Industry Co., Ltd. (Huayang Electric) bought the sea water smog desulfurization system from the defendant, the Japanese Fuji Water Co., Ltd. (Fuji Water), and used the same in the smog desulfurisation project in the Houshi Thermal Plant in Fujian Province. Wuhan Jinyuan claimed that said system infringed its patent right, and asked Huayang Electric, on several occasions, to cease the infringement of said patent, and held negotiation on matter of patent license. Later, Wuhan Jinyuan sued in the Fujian Higher People’s Court, requesting the court to hold the two defendants liable for cessation of infringement and compensation of damages. The plaintiff also claimed that, for easy enforcement, the plaintiff would like to accept payment of royalties from the defendants, instead of their cessation of infringement.
The court concluded in its decision made in May 2008 that the two defendants infringed the plaintiff’s patent right. “But, installation of smog desulfurisation means in a thermal plant conformed to the essencial national environment protection policy and the industrial policy, was conducive to building up an environmentally friendly society and produce good social benefits, and power supply had direct impact on the local economy and life of the local people; ceasing use of the device would have adverse effect on the local economy and life of the local people. To strike a balance between the interests of the rightholders and those of the general public”, the Fujian Higher People’ s Court did not support Wuhan Jingyuan’s request that Huayang Electric cease the infringement, and meanwhile ordered Huayang Electric to pay royalties to Wuhan Jingyuan from the date on which the power generator set using the infringing method and means was put to business operation to the expiry of the invention patent.25 Dissatisfied with the decision both parties, appealed to the Supreme People’s Court.
In December 2009, the Supreme People’s Court made the final judgment, affirming the first-instance court conclusion. The Supreme People’s Court took the view that “given that the smog desulfurisation system has been installed in the power plant of Huayang Electric and put into operation, and ordering it to cease the infringement would have major impact on the local public interests, with full consideration of the interests of the rightholders and those of the general public,” it is not undue for the first-instance judgment to support paying the royalties, and not to order cessation of infringement26.
Brief analysis
in the Wuhan Jingyuan case, it is the first time for the courts in China to have specified that public interests could be a consideration for the application of cessation of infringement in patent infringement litigation. Before the case arose, while there were cases where accused infringers made public-interests defence, the trial courts did not rule on the imposition of the liability as the allegedly infringement did not fall within the extent of protection of the patent in suit, and the alleged infringement was not found.27
Cases similar to the Wuhan Jingyuan case also arose in the judicial history in the U.S., such as City of Milwaukee v. Activated Sludge, Inc. closed by the Seventh CAFC in 1934. In the case, the plaintiff had several patents for processes and apparatus for sewerage processing, and the defendant’s sewage plant infringed the plaintiff’s patent right. In its decision, the court pointed out that “if the injunction ordered by the trial court is made permanent in this case, it would close the sewage plant, leaving the entire community without any means for the disposal of raw sewage other than running it into Lake Michigan, thereby polluting its waters and endangering the health and lives of more than half a million people adjoining communities. Given that the plaintiff’s damage could be monetarily compensated, the court did not support the plaintiff’s motion for injunction 28.
Of course, the effect of the precedent on the matter of whether to grant an injunction was overridden by eBay or post-eBay. As mentioned above, the “public interest is only one factor of the four-factor test. Even with reference made to the four-factor test, the decisions made in the Wuhan Jingyuan case are due. As for the “irreparable injury”, the plaintiff did not give evidence to attest it. After the case was closed, the plaintiff claimed that the infringement had changed the market structure, and made it difficult for it to enter the relevant market. Ascertainment of the fact would help issue the injunction29. As for the “inadequate remedies”, since China is not a common law country, the matter of whether to apply the equities of law does not exist there, so things can be simplified to such an extent as to judge whether compensation of damages is sufficient to compensate the harm done to the plaintiff. The Wuhan Jingyuan is an environmental engineering business devoted to R&D, manufacture and construction of desulfurization and denitrification technology and equipment for thermal heat power generation. It does not use the patent in suit, but just license its patents to others30. In the litigation, the Wuhan Jingyuan requested, on several occasions, to consult with the defendant on the matter of patent license, and expressed its willingness to pay for the royalties, instead of cessation of infringement in its requests made during the litigation. Under this circumstance, the court would find it difficult to determine that monetary damages were inadequate to compensate the plaintiff’s injury. As for the consideration of the balance of hardships there lacked evidence in this regard in the case. But considering that on the date of the second-instance judgment, the patent in suit was the only patent Wuhan Jingyuan owned,31 which was central to its business32, and on which its production and business were based. This factor seemed to be conducive to issuance of an injunction. Finally, as for the “public interests”, both courts concluded that cessation of infringement would do serious harm to the public. It was exactly out of this consideration that the two courts did not support the plaintiff’s claim for cessation of infringement claim. Possibly since application of cessation of infringement is rarely discussed in the judicial practice in China, the interested parties did not debate on nor adduce evidence about the matter in the case. Even if considering evidence likely to be supplemented, the plaintiff Wuhan Jingyuan would probably find it difficult to testify the condition as required by the four-factor test. Under the four-factor test, the trial court would more tend not to issue the injunction requested.
3. Guidance of the Supreme People’s Court’s trial
It is worth noting that before the first-instance ruling was made in the Wuhan Jingyuan case, Cao Jianming, Vice-President of the Supreme People’s Court mentioned the issue of correct application of the civil liability system in the speech he made at the second meeting on the work of trial of IP cases attended by the courts in China in February 2008, pointing out that “cessation of infringement and compensation of damages are the basic civil liabilities for IP infringement, but civil liability is flexibly imposed. In practice, it is possible to determination may e made of the specific civil liabilities and other liabilities according to the specific circumstances and practical needs of a case under the law, so that the liability imposed would correspond to the infringement, and fully protect a rightholders’ legitimate rights and interests”. As for the application of cessation of infringement, he noted that where an infringement goes on when a first-instance decision is made, the court should generally order the infringement to be ceased; a reasonable balance should be kept between the interests of a rightholder and those of the general public according to the specific circumstances of a case. If cessation of infringement is likely to knock the rightholder’s interests greatly out of balance or goes against the public interests, or it is practically impossible to cease infringement, one may weigh upon the interests according to the specific circumstances of a case. It may not be adjudged to cease infringement where it is possible to take measures for full and practical compensation of damages or financial harm”33.
In addition, the Supreme People’s Court’s spelt out a principle in Article 8 of the Opinion on Several Issues Relating to Implementation of the National IP Strategy issued on 30 March 2009, providing that the relations between protection of private rights and safeguarding the public interests should be treated with care. Work should be done to enhance the awareness of private rights protection and respect for the rule for the protection of the private rights, so as to protect interested parties’ legitimate rights and interests under the law and realise the goal of the IP regime for encouraging innovation, to duly define the limit of the IP rights, abide by the mandatory regulations set under the law to protect the public interests, to ensure a balance between the private rights and the public interests and to keep the market order34. In this regard, what the Supreme People’s Court pointed out should not be limited only to the matter of application of cessation of infringement; it also related to issues, such as the compulsory patent license system, the way to keep a balance between the protection of private rights and the public interests as a whole. The decisions made in the Wuhan Jingyuan case have evidently embodied the spirit of the speech and conformed to the principle for due treatment of protection of private rights and the public interest.
III. Conclusion
In the Wuhan Jingyuan case, the court has decided, for the first time, not to apply cessation of infringement out of consideration of the factor of public interests, which is of landmark significance. While China is not a case law country, the second-instance decision, as made by the Supreme People’s Court, will serve as a frame of reference for the judicial practice of all the courts in China in the future. Considering the speech and its guiding role, there will be more cases involving cessation of infringement in the future judicial practice in China, and the way in which the remedy is naturally applicable in case of established infringement is likely to be changed.
The authors: Meng Pu, Wu Yuhe, Xiong Yanfeng, Li Jiang, Cheng Miao, Li Rongxin, and Liu Feifei
1 547 U.S. 388, (2006)
2 456 U.S. 305, (1982)
3 480 U.S. 531, (1987)
4 InWeinberger v. Romero-Barcelo, the US Supreme Court concluded that an injunction is an equitable remedy. It was not a remedy which issues as “of course,” An injunction should issue only where the intervention of a court of equity "is essential in order effectually to protect property rights against injuries otherwise irremediable." The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies. 456 U.S. 305, 311-313, (1982).
In Amoco Production Co. v. Gambell, the US Supreme Court also pointed out that the fundamental principle was that an injunction is an equitable remedy that does not issue as of course. The court hold that the bases for injunctive relief were irreparable injury and inadequacy of legal remedies. In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief although particular regard should be given to the public interest 456 U.S. 305, 311-313, (1982).
5 “Subject to the provisions of this title, patents shall have the attributes of personal property.” 35 U.S.C. §261.
6 “Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof.” 35 U.S.C. 154 (a) (1).
7 “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” 35 U.S.C. §283.
8 See：City of Milwaukee v. Activated Sludge, Inc., 69 F.2d 577, (7th Cir. 1934).
9 Metabolite Labs., Inc. v. Competitive Techs, 370 F.3d 1354, 1372 (Fed. Cir. 2004).
10 MercExchange, LLC v. eBay, Inc., 401 F. 3d 1323, 1339 (Fed. Cir. 2005).
11 eBay Inc., et al. v. Mercexchange, L.L.C., 547 U.S. 388, 391.
12 Mark J. Feldstein, Permanent Injunctions and Running Royalties in a Post eBay World, at http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=9ab31765 -b1b2-43ac-b4fe-01a5477485a6 as visited on 28 February 2010.
13 589 F.3d 1246,（Fed. Cir. 2009）
14 i4i Limited Partnership and Infrastructures for Information Inc. v. Microsoft Corporation, 589 F.3d 1246, 1275 (Fed. Cir. 2009).
15Id. at 1276.
16Id. at 1276.
17Id. at 1277.
18 Id. at 1277.
19Id. at 1277, 1278.
20 Article 134 of the General Principles of the Civil Law of the People’s Republic of China: The main methods of bearing civil liability shall be (1) cessation of infringement; ….
21 Article 15 of the Infringement Liability Law of the People’s Republic of China: “The main methods of bearing civil liability shall be (1) cessation of infringement; ….”
22 The Shenzhen Intermediate People’s Court’s Civil Judgment No. Shenzhongfaminsanchuzi 587/2004.
23 The Shanghai No.2 Intermediate People’s Court’s Civil Judgment No. Huerzhongminwu(zhi)chuzi 186/2006.
24 The Shanghai No. 2 Intermediate People’s Court’s Civil Judgment No. Huerzhongminwu(zhi)chuzi 12/2006.
25 The Fujian Intermediate People’s Court’s Civil Judgment No. Minzhichuzi 4/2001.
26 The Supreme People’s Court’s Civil Judgment No. Minsanzhongzi 8/2008.
27 See Min Xueshu v. Kunmin City Dianchi Administration, in which the Yunnan Province Kunming City Intermediate People’s Court made the Civil Judgment No. Kunminliuchuzi 25/2005.
28 City of Milwaukee v. Activated Sludge, Inc., 69 F.2d 577, 593 (7th Cir. 1934).
29 Li Li, Win a Major Foreign-Related Patent Case in the Field of Environmental Protection, at http://www.legaldaily.com.cn/bm/content/2010-01/14/content_ 2025313.htm, as visited on 28 February 2010.
31 Source of data from http://www.sipo.gov.cn/sipo2008/, as visited on 28 February 2010.
32 See Wuhan Jingyuan website http://www.cept.com.cn/Article/ShowClass.asp?ClassID=6 as visited on 28 February 2010.
33 Cao Jianming, Speech made by Cao jinming, Vice-President of the Supreme People’s Court in February 2008 at meeting on the work of trial of IP cases attended by the courts in China in February 2008 at http://vip.chinalawinfo.com/newlaw2002/slc/slc.asp?db=chl&gid=110312, as visited on 28 February 2010.
34 The Supreme People’s Court’s Opinion on Several Issues Relating to Implementing the National IP Strategy (No. Fafa 16/2009) at http://www.chinacourt.org/flwk/show.php?file_id=134543, as visited on 28 February 2010.
