Partners Jerry Xia and Simon Du of GEN Law Firm represented the case of FMC Agro Singapore Pte. Ltd. vs. Zhejiang Yongtai Technology Co., Ltd. where a very rare pre-suit injunction was issued to cease patent infringement. This case has been selected as one of the "2022-2023 Quality Brands Protection Committee of China Association of Enterprises with Foreign Investment (QBPC) Top Ten Civil Litigation and Judicial Procedure Cases", "2022 Zhejiang Courts' Top Ten Intellectual Property Cases", and "2022 Ningbo Courts' Top Ten Innovative Intellectual Property Judicial Protection Cases".

Result:

On April 19, 2022, the Ningbo Intermediate Court issued a pre-suit injunction decision (2022) Zhe02 Certificate Protection No. 1, prohibiting Yongtai Company from offering to sell the allegedly infringing products that infringe FMC's invention patent right (ZL02815924.1) until the final judgment of this case becomes effective or the patent protection period expires. 

Reason for selection:

The protection of intellectual property rights at exhibitions is an essential link in maintaining a sound international trade order, and this case is a pre-litigation behavior preservation case involving exhibition economy. In considering the applicant's request to prohibit the respondent from participating in the exhibition again and implementing the allegedly infringing behavior, the court took into account that although the invention patent right involved in the case is about to expire, it still has a high commercial value, and the spring sowing season is the peak sales season for patent products. If the respondent is not prohibited from participating in the exhibition again, it may cause irreparable loss to the applicant. Therefore, the court decided to prohibit the respondent from offering to sell the allegedly infringing products. The ruling timely protected the legal rights and interests of the foreign applicant, reflecting the judicial attitude of Chinese courts to adhere to equal protection and create a legal and international business environment. Subsequently, FMC Agro Singapore Pte. Ltd. (hereinafter referred to as FMC Company) sent a letter of thanks, stating that the ruling increased its confidence in continuing to increase investment in China.

Adjudication summary:

If the interested party, due to the urgency of the situation, does not immediately apply for behavior preservation, it will cause irreparable damage to its legal rights and interests, it may apply to the People's Court for behavior preservation measures before filing a lawsuit. If the applicant's intellectual property rights are being or about to be infringed in situations with stronger time sensitivity such as exhibitions, it can be deemed as an "urgent situation". In this case, on the one hand, the annual professional exhibition will be held as scheduled, and the respondent is likely to participate in the exhibition and continue to implement the allegedly infringing behavior. On the other hand, the spring sowing season is the peak sales season for patent products. If the allegedly infringing behavior is not prohibited, it will lead to the loss of the applicant's business opportunities and the erosion of patent product prices. Therefore, this case belongs to an "urgent situation".

Case index:

First instance: Ningbo Intermediate People's Court of Zhejiang Province (2022) Zhe 02 Certificate Protection No. 1

Case introduction:

FMC Company is one of the invention patent right holders of the patent titled "N-Phenylcarbamoyl Compounds for Killing Arthropods" with the number ZL02815924.1. The patent involved in the case is an original research pesticide compound patent with strong patent right stability. The chlorantraniliprole compound protected by the patent involved is a main ingredient recommended by the United Nations Food and Agriculture Organization and the Ministry of Agriculture and Rural Affairs of China for the control of Spodoptera frugiperda and is well-known in the field of pesticide professionals. Zhejiang Yongtai Technology Co., Ltd. (hereinafter referred to as Yongtai Company) promised to sell pesticide products containing chlorantraniliprole at several large-scale exhibitions and promoted them on the company's official website. The company's agricultural chemicals division general manager also provided chlorantraniliprole API quotes to potential customers after the exhibition. FMC Company believes that the above-mentioned offer to sell behavior obviously involves the infringement of the invention patent right involved in the case, and the infringement situation is urgent and should be stopped in time. Therefore, it filed a pre-litigation behavior preservation application, requesting the court to order Yongtai Company to stop offering to sell pesticide products involving the invention patent right until the final judgment of this case becomes effective.

Adjudication content:

The Ningbo Intermediate People's Court of Zhejiang Province found that the respondent Yongtai Company's behavior of offering to sell the allegedly infringing products through the exhibition in this case was not a legal competitive behavior, which would cause the loss of FMC Company's business opportunities and the erosion of the prices of the patent products involved, and the possibility and urgency of infringement were imminent due to the traditional peak season for pesticide sales.

Therefore, the Ningbo Intermediate People's Court supported FMC Company's request and issued a pre-litigation injunction against Zhejiang Yongtai, prohibiting Yongtai Company from engaging in any activities offering to sell chlorantraniliprole (including at trade fairs) before the expiration of FMC Company's patent, until the final judgment of this case becomes effective or the patent protection period expires. This is one of the few cases in the domestic pesticide field where a first-instance court has granted a pre-litigation injunction.

An important highlight of this case is the determination of the "urgent situation" in the behavior preservation of intellectual property disputes. Article 6 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Review of Intellectual Property Dispute Behavior Preservation Cases" stipulates that "the applicant's intellectual property rights are being or about to be infringed in situations with stronger time sensitivity such as exhibitions" should belong to "urgent situations", but there is a dispute over whether "urgent situations" still apply after the exhibition ends.

Although the offer to sell behavior corresponding to "situations with stronger time sensitivity such as exhibitions" formally ends temporarily after the exhibition ends, as shown in the case, subsequent implicit business contacts such as emails between the respondent and customers will continue after the exhibition. Therefore, the damage to legal intellectual property rights caused by the exhibition will continue to exist for a certain period after the exhibition, and if there is evidence during this period, the applicant's intellectual property rights can also be deemed to be infringed. Therefore, considering the above situation, the Ningbo Intermediate Court clarified and explained that "urgent situations" still exist after the exhibition ends.