What is the scope of intellectual property infringement identification
If the People's Court considers that a specialized issue requires appraisal, it shall submit Identified by the legal appraisal department.
Intellectual property judicial appraisal refers to intellectual property litigation During the process, in order to ascertain the facts of the case, the appraiser uses scientific technology or professional knowledge to identify and judge the relevant intellectual property issues involved in the litigation and provide appraisal opinions.
A party's application for identification shall be submitted within the time limit for producing evidence. .
Identification is an activity to find out the facts of the case. The conclusion is the evidence used to determine the facts, and the identification rules are an important part of the evidence rules.
Scope of identification in intellectual property litigation
(1) Scope of identification in copyright infringement disputes
1. Determination of plagiarismCopyright infringement disputes involve a variety of infringement methods, and plagiarism is one of the basic infringement methods. A basic principle to measure whether the right of reproduction has been infringed is to see whether the accused infringer's work contains the original work of the copyright holder in a non-original way. This principle shows that although the original and defendant’s works contain the same expression, if the same expression is material in the public domain and the defendant’s work contains non-original achievements in the plaintiff’s work, it does not constitute plagiarism of the plaintiff’s work. .
In judicial practice, the original and Compare the defendant's works to identify the same content, then exclude the content in the public domain, and finally determine whether the remaining content contains ideas and expressions that should be excluded and are substantially the same.
Whether plagiarism is a matter of fact and law , the determination of plagiarism involves the determination of both factual issues and legal issues. Only the determination of factual issues can be left to the appraisal agency for judgment.
2. Determination of computer software infringement
eg.If the content involved in a specific case is relatively complicated, it can be left to an appraisal agency to help the judge make the determination. Judges are not familiar with various high-level computer languages, so they are not good at judging the similarities and differences of source codes written in high-level languages. The identification of source code similarities and differences has a certain degree of professionalism, and can be handed over to experts who are familiar with high-level computer languages through an appraisal agency. Let the experts judge. As software functions, structures and codes continue to become more complex, identification of software similarities and differences through identification can lay a solid factual basis for infringement determination.
It should be noted that the determination of originality is Legal issues cannot be left to an appraisal agency for determination.
(2) Scope of identification in patent disputes
In the judicial practice of patent infringement cases, the main disputes over the scope of appraisal are the determination of the scope of protection of the patent right, the determination of whether it falls within the scope of protection, and whether the appraisal can be entrusted.
In judicial practice, determine whether a utility model is infringed upon Or invention patent rights, generally involve the following identification steps:
1. Determine the scope of protection of the plaintiff’s patent rights;
2. Identify the technical solution for the allegedly infringing product or method;
3. Determine whether the technical solution accused of infringement falls within the scope of patent protection;
4. Whether the defendant’s defense is established.
If you want to determine that infringement is established, you need to analyze the above issues at the same time. If one of the steps does not belong to a factual issue, the entire determination process cannot be submitted to the appraisal The institution shall make the judgment.
Determination of the scope of patent protection It includes the understanding of technical solutions, and the technical issues involved are specialized factual issues, and you can turn to experts for help. In our country, even if the technical issues involved in the judgment of patent validity must be identified through appraisal, the professional technical issues in the judgment of patent inventiveness Although appraisal can be carried out, whether there is inventiveness cannot be left to the appraisal agency to judge as a whole. It can only be judged by a judge or an examiner with administrative judge qualifications.
(3) Scope of identification in trade secret infringement disputes
Trade secret dispute cases often involve complex professional and technical issues. Therefore, in trade secret cases, experts or appraisal institutions are entrusted to authenticate. The situation is relatively common.
The Supreme People's Court's "About Trial Paragraph 2 of Article 9 of the Interpretation of Several Issues on the Application of Law in Civil Cases of Unfair Competition stipulates that if any of the following circumstances occurs, the relevant information may be deemed not to be unknown to the public:
1. The information is for people in the technical or economic fields to which they belong. Common sense or industry practice;
2. This information It only involves product size, structure, materials, simple combination of components, etc., and the relevant public can directly obtain it by observing the product after entering the market;
3. The information has been publicly disclosed in public publications or other media;
4. This information has been disclosed through public seminars, exhibitions, etc.;
5. This information can be obtained from other public channels;
6. The information is easy to obtain without paying a certain price.
Comparison of the technical solutions of both parties at the technical level situation, when the technical solutions of both parties are relatively complex, a specialized appraisal agency can be entrusted to make a preliminary identification of the comparison of technical solutions, list the same technical features that are not disputed by both parties, and list the technical features that are disputed by both parties and The preliminary judgment of the appraisal agency.
If you have anything else that you don’t understand, we also welcome you to go to the Legal Savior Network for online consultation. We have the most professional lawyers to provide you with legal help to protect your Legitimate rights and interests.
