On Mediation Mechanism In Intellectual Property

The thesis focuses on how to construct the mediation mechanism fully embodying the uniqueness of intellectual property dispute and efficiently resolving the intellectual property disputes, in the way to construct innovative country and harmonious society in China.The function of incentive to create of intellectual property becomes more and more important in the environment of globalization. Intellectual property is the key resource for national competition. And intellectual property owners pay more attention on the strategy of right management and operation than the protection of right. As a private right, intellectual property right can freely control and disposite. And intellectual property is of the characteristics of legitimacy, immateriality and terminability. These unique characteristics are the premise to further study the mechanism of intellectual property dispute.For the speciality and technology of intellectual property, civilian mediation and arbitration are rarely adopted to resolve the intellectual property infringement cases. Litigation is the main method to resolve the dispute in intellectual property. In the intellectual property infringement cases, the infringer usually asks to declare the right invalidation against the obligee. And there is a cross between the civil disputes and administration disputes. The end of civil disputes depends on the result of administration disputes; it prolongs the procedure of intellectual property litigation. While there is no multiple dispute resolve mechanism to proper resolve the intellectual property dispute, and the result is to pursue the litigation. But interminable litigation procedure can't efficiently resolve the intellectual property disputes.In order to improve the efficient and relieve the adjudge pressure of intellectual property, court begins pay too much attention to the mediation of intellectual property dispute. The principle of intellectual property is to mediate the mediate, justice the justice, integrate mediate and justice. Entirely mediation becomes the good experience for most of courts. At the same time mediation ratio becomes the standard to evalue the level of judges and courts. The judge has difficulty in the roles of mediator and judge for their personal interests. And in practice, the judge prefers persuading, delaying, coercing and inducing rather than mediating. Litigation mediation divorces from the nature of mediate.Obviously, there is no reasonable multi-resolvement mechanism for the intellectual property disputes, as the existing litigation and non-litigation mechanism failed to effectively operate in the resolvement of intellectual property disputes. Despite it is due to the speciality of intellectual property, the primary reason is that the existing resolvement mechanism of intellectual property disputes is based on the object of disputes, not on the part of the parties. Actually the process to resolve the dispute is the process of both party's interests gaming. So we should begin with the interests of party, and further develop the common principle to properly resolve the intellectual property dispute. It is necessary to evaluate the effect made by the parties. It is the key for the resovement of dispute to analysis the party's choice strategy based on their interest claim according to the Game Theory than analysis of the dispute itself.The object of the parties in intellectual property dispute is multiple. Some people pursue the basic interests (achieving the value of intellectual property), some people pursue the anti-interests (forbidding other's use), and the others pursue both of the interests. Bases on the above analysis, we can draw the intellectual property dispute into three kinds, namely, A(both parties with the same interests), B(both parties with the comparability interests), C(both parties with different interests).It is necessary to distribute the intellectual property disputes. In the first distribution, it are the parties and right owner that decide the disputes means, whether mediation, arbitration or litigation. In the second distribution, if the right owner has chosen through litigation procedure to settle down the dispute, then we can classify the dispute in light of the expect interest objects of the parties. The essence is to take the present litigation mediation procedure from the litigation procedure for obtain a proper result. Through twice distribution, we can make the mediation in the procedure of litigation away from the litigation, and promote both parties to resolve the dispute with the perspective of non-zero sum games, and develop an effective and coordinated mediation mechanism.The development of mediation mechanism in intellectual property disputes is based on the properly disposal of litigation and non-litigation mechanism, taking social context into account and respecting the party's right to choose. In the progress of mediation, we should hold the idea of person-oriented, mediator neutralism, legal mediation and win-win coordination. It is important for mediation to properly adopt mediation priciples and rules.