Meaning
Judicial measures issued by Chinese courts command a party to perform or refrain from specific acts to prevent immediate and irreparable harm to the intellectual property rights of a petitioner. Behavior preservation orders function as preliminary injunctions within the civil procedure system of the People’s Republic of China, specifically under the 2018 Supreme People’s Court provisions. These orders apply most frequently in cases of patent infringement, trademark violations and trade secret misappropriation where delayed action would render a final judgment ineffective.
The court must evaluate the urgency of the situation, the likelihood of success on the merits and the balance of hardships between the parties. Unlike standard litigation which can last years, these orders can be granted within hours or days in extremely urgent circumstances. The petitioner must provide a guarantee, often in the form of a cash deposit or a bank letter of credit, to compensate the respondent if the order is later found to be wrongful.
Behavior preservation orders are strictly enforced and violations lead to fines or criminal detention for the responsible company officers.
Urgent Necessity
Applications for these measures require proof that the applicant faces a situation where the harm cannot be remedied by monetary damages alone. If a competitor is about to launch a product at a major trade fair that violates a patent, the rights holder may seek behavior preservation orders to block the exhibit. The court looks for evidence of lost market share, damage to brand reputation or the potential destruction of evidence.
If the court determines that the harm is not imminent, it will reject the application and instruct the parties to proceed with the normal trial schedule. This requirement for urgency ensures that the judicial power is not used to unfairly suppress legitimate competition.
Security Bond
Courts require the applicant to post a bond that covers the potential losses the respondent might suffer during the period the injunction is in force. This bond is usually calculated based on the expected sales revenue or the cost of stopping production lines. If the underlying lawsuit eventually fails and the court finds no infringement, the respondent can claim against this bond to recover their losses.
This financial hurdle prevents frivolous applications and ensures that the applicant is confident in the strength of their legal position. The amount of the bond can be substantial, often reaching several million yuan in high-stakes technology disputes.
Judicial Review
Judges conduct a preliminary hearing to assess the evidence and the legal arguments before issuing the mandate. While the full trial provides a deep dive into the technical details, the review for behavior preservation orders is more focused on the prima facie evidence of infringement. The court may consult with technical investigators or use its own expertise to determine if the claims have a high probability of success.
Once an order is issued, it remains in effect until the final judgment is rendered or until the court decides to lift it. Respondents can request a reconsideration of the order, but they must comply with its terms while the reconsideration is pending. This immediate effect makes the orders a powerful tool for stopping infringing activity at its source.
Behavior preservation orders represent the most direct form of judicial intervention available to intellectual property owners in China.
