How to determine liability for intellectual property infringement
Intellectual property takes tangible and intangible "knowledge" as its object. The determination of intellectual property infringement is a difficult point in trial practice, and it is also controversial in theoretical circles. The determination of infringement is an important basis for whether and what kind of civil liability the defendant bears. It is one of the key links in the composition of intellectual property infringement liability. For the People's Court, it is the judge who, through civil litigation procedures, uses the evidence, cross-examination and judgment of the evidence by both the plaintiff and the defendant in the court trial to confirm the alleged behavior of the defendant with legal effect.
When determining infringement, knowledge should be based on The provisions of property rights laws and combined with the circumstances of individual cases, focus on examining the following factors:
1. Review whether the infringed rights are valid. Reviewing the validity of rights is the first task that a judge should do after accepting an intellectual property infringement case, which embodies the legal review of intellectual property rights, because only legal rights are rights protected by law. To examine whether a certain act constitutes an infringement of intellectual property rights, the validity of the right must first be examined. For example, review whether the copyright content is legal and within the protection period, whether the patent right is valid when the infringement occurs, whether the trademark right exists legally, etc. In practice, this kind of review is simple and easy, so the method of review isFormally, it is entirely possible to adopt the method of active review by the judge. For example, my country's Copyright Law stipulates the principle that prohibited works are not protected by law. In copyright infringement cases, when it comes to whether the content of the work is prohibited, the defendant often does not make a defense in this regard, because once it is recognized that it is a prohibited work, the plaintiff's If the claim is not supported, the defendant may have to bear certain legal liabilities, so both the plaintiff and the defendant may avoid this issue. If the judge does not take the initiative to review, it will be difficult to accurately determine the entire legal relationship; similarly, in patent rights, In other types of intellectual property infringement lawsuits such as trademark rights, judges must also proactively review the validity of the rights.
In addition to examining the validity of the plaintiff’s rights, the defendant Whether the source of the object or behavior complained of is legal is also within the scope of review. First of all, intellectual property rights are civil rights, and rights holders can freely exercise their legal rights within the limits of the law. Rights holders can exercise their rights themselves, or transfer all or part of their rights to others through authorization, transfer or inheritance, and others can then put the rights into production and exchange to obtain benefits. If the defendant can prove that the act has a legitimate source of rights, it cannot be regarded as an infringement according to legal principles and intellectual property laws. Second, in addition to the exercise of rights under the control of the right holder's subjective will, there are also rights other than the right holder's subjective will. In particular, intellectual property rights, as a kind of intellectual achievement, play a great role in promoting the development of social productivity. If the right holder considers his own interests and monopolizes the results absolutely or does not disclose them in order to obtain more profits, it will be detrimental to the progress of society. Therefore, the law also imposes some restrictions on intellectual property rights, which are mainly reflected in restrictions on "fair use" of copyrights, statutory licenses, compulsory implementation licenses, etc.; restrictions on prior implementation, temporary transit, and non-profit implementation licenses of patent rights. At the same time, it should be noted that trademark rights do not have the above-mentioned rights restrictions. If the acts performed by the defendant are those acts stipulated by law, they can also be considered as acts with legitimate sources of rights and will not be regarded as infringement.
2. Examine the relationship between the object or act complained of and Whether the constituent elements of the plaintiff’s rights are the same or similar. During the trial of an intellectual property infringement case, the judge usually has to compare the alleged infringement or behavior with the plaintiff's rights object before making a judgment on the sameness or similarity. For those more complex literary works and artistic works, infringement cases, as well as more technical infringement cases of patent rights, trade secret infringement and integrated circuit layoutWhen comparing technical aspects of design rights, experts or professional appraisal agencies are generally required.
Make the sameness judgment. When the constituent elements of the two situations are exactly the same, it is easy to make a judgment of the sameness and determine that the infringement is established. But when only some parts are the same, the judgment is much more difficult. In this case, it is necessary to isolate the same part and examine whether it is original and whether it can be protected as an independent intellectual property object. If the same part is original, it means that it can constitute the object of intellectual property, and it can also be protected. It is determined that they are identical and the infringement is established.
Make similarity judgments. The characteristic of this type of infringement is that there is no creativity in its constituent elements, but slight modifications of other people's intellectual achievements and some non-substantive changes. The purpose is to avoid being completely identical with other people's intellectual property rights. , in order to misappropriate other people's intellectual achievements in a covert manner. When making this judgment, different judgment standards should be applied based on different types of cases. Regarding infringement cases of trademark infringement, infringement of well-known product names, packaging and decoration, infringement of design patent rights, infringement of trade name rights, infringement of copyright and other types of infringement cases, because the characteristics of such products are intuitive to a certain extent, they are generally judged from the perspective of ordinary people. Make a judgment; in relatively professional infringement cases such as infringement of software copyright, infringement of invention or utility model patent rights, infringement of integrated circuit layout design rights, etc., the judgment standards of ordinary professionals should be adopted. Because in these cases, the infringers have made non-creative changes to certain elements of other people’s rights, and these changes are invisible to ordinary consumers, while ordinary technicians in the industry can naturally associate the infringing product with the The original technology has substantially the same effect. If there is no substantial change between the two, the similarity should be determined and the infringement shall be established.
3. Do not rely on "fault" to determine infringement essential requirements. In the general theory of civil torts, the perpetrator's fault is one of the requirements for the establishment of a tort. Under the influence of this theory, my country's 1992 Patent Law stipulates the principle of good faith use. The use or sale of patented products that are not known to be manufactured and sold without the permission of the patentee shall not be regarded as infringement.
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