Patent Act Article 100: Right to Demand Injunction

1. Overview

A demand for an injunction refers to requesting the cessation or prevention of infringement when a patent right is infringed or is likely to be infringed (Article 100, Paragraph 1). Here, infringement refers to a third party without authority or legitimate reason working a patented invention as a business (Article 68), or performing certain preliminary acts (Article 101).

The right to demand an injunction is intended to prevent infringement in advance or seek its early cessation, and to prevent the expansion of future losses; it can be said to be the most effective and direct remedy as an infringement prevention measure. To receive prompt relief, filing for a provisional disposition is effective.
(However, if the act is no longer considered an infringement due to the patent being invalidated after the provisional disposition, there is a possibility that liability for damages may arise.)

・A demand for an injunction can be made even if the infringer is acting in good faith.
This is because the requirements for infringement are the working of a patented invention as a business by a third party without authority (Article 68), etc., and whether or not they are acting in good faith, or whether there is intent or negligence, is irrelevant.

1.1. Requirements for the accrual of the right to demand an injunction

(1) The plaintiff is the patentee

It is required that the plaintiff be the patentee at the time of the conclusion of oral arguments in the fact-finding instance, which is the standard time for the judgment (Article 100, Paragraph 1). The plaintiff identifies the patent by patent number and asserts that they hold this patent right. When the defendant does not dispute this, it becomes a confession of rights, and there is no need for the plaintiff to make further assertions.

(2) The defendant is working the patented invention as a business, or there is a risk of them doing so (Article 68)

To prevent abuse of rights, objectivity is required for the 'risk'. That the defendant's working of the patented invention is 'illegal' does not fall under the plaintiff's burden of proof. The defendant is required to assert and prove that it is 'legal' as an affirmative defense.

・It is also possible to request the cessation of infringement through a warning. Infringement after a warning becomes intentional infringement.

1.2. Affirmative defenses, etc.

・Defense of prior application rights
When there are multiple patent rights for the same invention, based on the principle of priority of the earlier application, the holder of the earlier application right will not have rights exercised against them by the holder of a later application right. When a demand for an injunction is made, one can assert their own authority by using the fact that they hold a prior patent right as an affirmative defense.
*In this case, it is thought that the defense under Article 104-3 is also possible.

2. Other

・When a demand for an injunction is received, it may even lead to the halting of product manufacturing. For this reason, when a demand for an injunction is made, it is necessary to obtain confirmation through a lawsuit for confirmation of the non-existence of the right to demand an injunction and have it finalized.

・It is considered that a partial demand for an injunction is not possible. Therefore, if a partial demand is necessary, it is realistic to make a partial demand for damages, and if infringement is recognized, then also make a demand for an injunction.

・Patent Act Article 100

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