Pre-trial preliminary injunction is available under the Chinese Patent Law. Because the application of pre-trial preliminary injunction may stop the infringement quickly, it is usually regarded as an effective means to stop patent infringement in patent infringement cases. However, in the judicial practice in China, it is quite rare that Chinese courts grant pre-trial preliminary injunction in patent infringement cases. For example, in Beijing area, no preliminary injunction order was ever granted in patent infringement cases before 2013. Except for other reasons, the major reason is that it is difficult to determine whether the “irreparable damage” has been caused as it is a pre-condition to grant the pre-trial preliminary injunction. The situation was changed in 2013 in the patent infringement case tried by Beijing Third Intermediate People’s Court between Abbot Trading (Shanghai) Ltd. and two Chinese companies ((2013) San Zhong Min Bao Zi No. 01933). Abbot Trading (Shanghai) Ltd. (“Abbot” hereinafter) is the licensee of Chinese design patent ZL200730158176.0, titled “Container” and was granted the right to file lawsuit against infringers in its own name. Abbot filed a pre-trial preliminary injunction request with the Beijing Third Intermediate People’s Court once it found the two Chinese companies infringed the patent. The court believed the “irreparable damage” requirement was met and granted the pre-trial preliminary injunction. The court believed that the two defendants sold the infringing milk powder containers to the milk powder manufacturing companies in wholesale, the alleged infringing products would be sold to the end users together with the milk powders. Every connections on the sales chain may constitute patent infringement on the concerned patent right. The loss or damage may be expanded and infringers may grow in number along with the increase of sales links and thus increase the cost and difficulty of Abbot for the protection of the patent right. Meanwhile, the patent is a design patent for a container, the patent term is just 10 years. The design of a container changes rapidly. The continuation of infringing activity would greatly affect the implementation of the patent right of Abbot. Therefore, irreparable damage would be caused to Abbot if the infringement is not stopped immediately. Thus, a preliminary injunction order was granted by the court. After the issuance of the preliminary injunction, the case was settled among the parties. This case was recognized by the Supreme Court in April, 2014 as one of the five typical cases, which shows that the Supreme Court had affirmed and supported the Beijing court’s standard on the determination of “irreparable damage”. Moreover, in February 2015, the Supreme Court published a proposed judicial interpretation on some legal issues in the act preservation in dispute of intellectual property right and unfair competition cases and invited for public opinions. In the draft interpretation, the Supreme Court tried to clarify the instances of “irreparable damage”. For example, in Article 8 of the interpretation, it is pointed out that “irreparable damage” is the situation that it could not be cured or calculated by money. Examples may be as follows: 1. Occurrence or persists of the act, would seize the petitioner's market share or force the petitioner to take irreversible cheap price to engage in business, thus seriously undermine the petitioner's competitive advantage; 2. Occurrence or persists of the act would lead to the subsequent infringements difficult to be controlled, and significantly increase the damage caused to the petitioner; 3. Occurrence or persists of the act would cause harm to the personal right of the petitioner; 4. The adverse party would be unable to compensate the petitioner. The following situations are generally not regarded as “irreparable damage” being caused to the petitioner. 1. The petitioner knows or should know the existence of the act but unreasonably delays in seeking judicial relief; 2. No reasonable grounds for not using or planning to implement the relevant intellectual property rights; 3. Damage caused to the petitioner may be easily calculated in money.

Although the above proposed judicial interpretation has not yet been finally approved and implemented, a guide had been given on the determination of what is "irreparable damage".  We believe it would be more clear and operational with respect to the meaning of "irreparable damage" in patent infringement cases in the future. It could be expected that there would be more "pre-trial preliminary injunction orders to be granted in patent infringement cases by Chinese courts in the future.