What are the applicable legal issues in foreign-related intellectual property litigation (applicable to patent litigation)
1. Regarding the application of procedural law, in accordance with the relevant provisions of Chinese law, foreign-related intellectual property litigation shall be governed by my country's Civil Procedure Law and Administrative Procedure Law. . If the international treaty concluded or participated by Our country has different provisions from the above two laws, the provisions of the international treaty shall apply, except for the provisions of which our country has declared reservations.
2. Regarding the application of substantive law, based on the principles of territoriality and independence of intellectual property, it should also be applied to the substantive handling of foreign-related intellectual property disputes. Relevant laws of our country.
As for patent rights, if a foreign patent applicant wants to obtain patent rights in China, the subject matter of his invention must comply with the patent requirements stipulated in my country's patent law. According to the conditions for the right, the Chinese patent examination department conducts formal examination and substantive examination in accordance with the Chinese Patent Law. Litigation also arising from the patent application, such as administrative litigation on whether the patent application can be granted a patent right, litigation on the ownership of the patent application right, administrative litigation on the validity of the patent right, litigation on determining the ownership of the patent right, and litigation arising from infringement of the patent right. All infringement lawsuits should be handled substantively in accordance with the provisions of my country's patent law.
The same applies to lawsuits arising from trademark disputes and copyright disputes. However, when dealing with foreign-related copyright disputes, you should pay attention to the following issues:
Foreign works were first published outside China, and the basis for copyright protection of such works in China is that In a bilateral agreement signed between the country where the copyright holder of a work is located and China, or an international convention to which both countries are a party, when the people's court handles a dispute over copyright infringement of the work, the confirmation of the copyright holder of the work should be based on the laws of the country where the work originated. If the other party has submitted proof that it is the copyright owner of the work in accordance with the laws of the country where it is located, and the other party has objections to the foreign party being the copyright owner but has not submitted sufficient evidence, the people's court shall only respond to the evidence submitted by the foreign party. It is enough to examine the authenticity and validity of the evidentiary materials without re-identifying the copyright owner of the work.
When applying our country’s intellectual property laws to handle foreign-related disputes, we must also pay attention to the provisions of the international intellectual property treaties that our country has concluded or participated in. Applicable issues.
Shanghai foreign-related lawyers from the Foreign Lawyers Network believe that if a foreign party claims intellectual property protection in my country based on relevant international intellectual property treaties, the People's Court shall rule in the judgment that In the administrative part, the treaty should first be clarified, preferably by explaining the time when our country and the foreign party participated in the international treaty respectively. This is the legal basis for the foreign party to claim rights in my country. If the provisions of the international treaty are consistent with the provisions of the corresponding intellectual property laws of our country, there is no need to cite the specific provisions of the international treaty in the main body of the judgment, and it is sufficient to directly quote the relevant provisions of our country's intellectual property laws; however, in the case of our country's laws and regulations If the international treaty has different provisions, the provisions of the international treaty shall apply, except for the provisions in which my country declares reservations.
For foreign works that are compiled from unprotected materials and are original in the selection or arrangement of the materials, according to the provisions of China's current copyright law , this work is not an editorial work in the sense of China’s copyright law, so it should not be protected by copyright law. However, according to the provisions of the Berne Convention for the Protection of Literary and Artistic Works to which China is a party, this work should be protected by copyright law. This is One of the inconsistencies between our country's laws and the provisions of this international convention, and our country has not declared a reservation, in this case, if the country where the copyright holder of the foreign work is located is also a member state of the "Berne Convention for the Protection of Academic and Artistic Works", Our country should provide copyright protection for this work. In the field of copyright law, our country has promulgated the "Regulations on the Implementation of International Copyright Treaties" regarding the inconsistencies between our country's copyright law and relevant international copyright treaties. Therefore, when handling copyright disputes, the People's Court still does not need to quote the main text of the judgment. Relevant international copyright treaties, and only cite the corresponding legal provisions in my country's Copyright Law and the "Regulations on the Implementation of International Copyright Treaties". However, in other fields, such as the protection of corporate names in the field of industrial property rights, Chinese law stipulates that a corporate name is protected only after it is registered in my country. This is different from the provisions of the Paris Convention for the Protection of Industrial Property. my country has not promulgated a special The laws and regulations stipulate that the name or trade name of a foreign party that fails to perform registration procedures in my country can also be protected in my country. In this case, the people's court should quote the above-mentioned international conventions in the main text of the judgment.
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