China’s Supreme People’s Court (the “Supreme Court”) promulgated the Opinion on Hearing Intellectual Property Cases During Current Economic Situation (the “Opinion”) on April 21, 2009.　In brief, the Supreme Court has signalled to the courts that a plaintiff’s request for a preliminary injunction (“PI”) in a case concerning intellectual property should be strictly scrutinized.　The following provides a summarization of important opinions contained within the Opinion:

(a)　 A PI should be granted only in cases wherein the facts are basically clear and it is relatively easy to determine whether the infringement has occurred;

(b)　 In a determination as to whether “irreparable harm” would be caused without the granting of a PI, serious consideration should be given to: (i) whether monetary damages would be sufficient to make the plaintiff whole; and (ii) whether a PI can be reasonably expected to be enforceable;

(c)　 Given that a PI would likely have a significant impact upon both the business operations and market share of a defendant, the Supreme Court opines that the courts should not allow plaintiffs to unduly harm defendants by liberally granting PIs.　Moreover, the courts should take into account whether the issuance of a PI would cause the defendant to suffer serious economic injury;

(d)　 In patent infringement cases - especially those concerning invention and utility models – it is not appropriate to grant a PI where a defendant’s conduct does not constitute literal infringement and further technical investigation (including a comparison of the plaintiff’s patent with the alleged infringing product of the defendant) is necessary.　Where the defendant has separately initiated non-infringement litigation, or has initiated patent invalidation proceedings over the claimed patent, the courts should also be cautious to grant a PI to said defendant; and