| This thesis starts from the theoretical concern and contemplation of practice, surrounds the interest balance of intellectual property in the context of intellectual property right litigation. It is divided into two parts: Pandect and Specification. The substantial and procedural problems, which occurred in the intellectual property right litigation, on the interest balance of intellectual property are generally discussed in the eight chapters of the article. Analyzing the judicial protection of the interest balance of intellectual property, the article attaches emphasis on solving the conflicts in the intellectual property right litigious cases through the balance of interest, in order to achieve the balance. Besides preamble and epilogue, there are eight chapters in the article which consists of more than one hundred and fifty thousand words. The epitome is as follows:Chapter One discusses the fundamental theories of the interest balance of intellectual property. This chapter is the Foreword of the whole article. It starts with the legal philosophy and contemplates the necessity and features of the interest balance of intellectual property from the theoretical aspect. To hold the interest balance of intellectual property thoroughly, the chapter makes comparison of the interests of intellectual property in the different context of history and reality. It is the theoretical base of the argumentation of the whole thesis.In the article, interest is not only a category in philosophy, but also in law. The history of human society's development proved one of the judgments of the philosophers: interest is the foundation of the social life, the only and generally operative motivation for social development, and the source of the social conflicts. Because of the nature of the interest subjects to pursue the maximum of interest, and the lack of resource and the illegality of the interest objects, the interest confrontation between the subjects is inevitable. The conflicts brought by the interest confrontation must be balanced, and the legal way to realize the interest balance is a rational method to eliminate the interest conflicts. The entire history of the intellectual property law shows that the interest balance is the theme of its development all the time. Intellectual property institution applies itself to provide a certain term of monopoly power for the creators of intellectual property through the protection of the intellectual property right which is a private right and the creators' property right and moral right, to encourage their intellectual creation; meanwhile through the limit on the intellectual property right of the obliges, the institution applies itself to prevent the right monopoly, brought by over-run protection, which would even in result obstruct the spread of the intellectual property, the promotion of science and technology and the social development. Although at present the other departmental laws pay a lot of attention to the issue of the interest balance, because of the public product nature of the intellectual property, the social attribute of the intellectual property and the conflict between the convergence to the international protection and the real existent gap between the south and the north, the issue of interest balance in the intellectual property law is more prominent and important. The interest balance of intellectual property mainly consists of the balance between the encouragement for theintellectual property creators to produce intellectual creations and the users of the intellectual property, the balance of the encouragement for the intellectual property creators to produce intellectual creations and the encouragement for the spread of the intellectual products, and the balance between private interest and public interest under the intellectual institution. Concerning the balance institution of intellectual property, according to the article, this balance of interest is achieved though legislation, judicature and enforcement of law in law-ruling society: Legislation evaluates or measures the importance of all kinds of interest of the intellectual property, and provides the standard for the harmonization of the conflicts between different kinds of interest; judicature makes concrete judge on the conflicting interest of intellectual property, so as to eliminate conflicts and resume the balance of interest; through the administration and enforcement of law, the law enforcement establishes a intellectual property system about the right adscription issue in intellectual property and the administration and sanction of the behaviors that are mainly concerned with the public order of society in the exercise of right. However, the interest balance is not absolute equalization of interest, or complete vanish of the interest conflicts. It is a balanced state, which limits the conflicts within the valuation of the social main stream, and keeps consistent with the future development of society.In order to have an overall understanding of the interest balance of intellectual property and to crystallize China's present basic choice and judgment of intellectual property interest, the article analyses the intellectual property issue through historical angle and comparative angle. The analysis is on the different expressions of intellectual property issue in different historical moments of a same country, and on the different behaviors of different countries on a same intellectual property issue in a same historical moment. According to the article, the demands of different kinds of interest urge the emergence and development of the intellectual property law. From the historical point of view, the main reason, that influences the direction of the balance of intellectual property's interest, is the more and more obvious tendency of public-rightlization of private right and public-lawlization of private law in the intellectual property filed. The intervention of the state's public right on the intellectual property transfers part of the interest of intellectual property right holders to the public interest of society. This makes the private right public-rightlized. The phenomenon of the public-rightlization of private right in intellectual property focus the intellectual property system on the promotion of technical revolution, transference and propagation, in order to promote the mutual benefit between the producer and user of the intellectual property though by means of social economy and welfare, and promote the balance of right and obligation. The main expression of public-lawlization of private law is the formation of international intellectual property law. According to the article, while there is similarity on the issue of the regulation of intellectual property in different nations, there are also multivariate characters from the comparative point of view. The importance of the regulation of intellectual property to the development of a nation-state's national economy, the situations of different countries, the science and technique and the developmental state of economy are important reasons for the emergence of these multivariate characters. Therefore,even at a same historical state, different nations will make different choices and decisions on the same intellectual property issue because of their own certain measurements of interest. For this reason, this article takes the legal protection of database as an example. Thorough the comparison of this issue in EU, USA, China and some other countries, the article analyses the consideration on the interest behind the choice of the legal protection of database in different countries, especially discusses the interest consideration on the legal protection issue of intellectual property in present China. According to the article , the judgment and choice China has made on the interest of intellectual property mainly depend on the particular cultural element and developmental level element of China, and the present international background element: China has a historical preference on the balance of interest, and this lead the Chinese society to a preference to personal interest, especially the balance between personal interest and public interest of the society; on the stage of rapidly going up, China attaches great impotence to the national interest balance of intellectual property issue which involves the developed countries, the public interest balance of intellectual property issue which involves the social development and promotion, and the interest balance issue which encourages the intellectual property right holders to produce actively the intellectual products needed by the development of society. With the entire international environment at present, the judgment and choice China has made on the interest of intellectual property can not be the result of self-decision without the influence of any external forces. On the contrary, different kinds of interest influence frequently upon the development of intellectual property right in China. However at present time of the rapid development of international economy, because China has the ambition for rise and revival, and China needs the world more than the world needs China, we have to make some certain temporary concessions sometimes at the issue on the development of intellectual property right. However these are only the process and approach to realize the balance of interest, not the ultimate result and destiny.Chapter Two discusses the judicial balance of the interest balance of intellectual property. This chapter is the general study on the judicial balance issue on the interest balance of intellectual property. This chapter mainly discusses the status and functions of judicial balance, several methods of the judicial balance, the aim, principles and procedures of judicial balance, and the courts' judicial measures to balance the interest in intellectual property. It is the fundament for the following specification in contents.The article talks about the status of the judicial balance. Speaking of the quality of jurisdiction, judicial power is a kind of procedural power which has ultimate and compulsory effect. Further more, jurisdiction is the world-wild generally used method in the benefit protection of intellectual property. Therefore, judicial protection is the most primary and important measure to coordinate the conflicts in the interest of intellectual property and to balance the interest. It is the fundamental approach to realize the interest balance of intellectual property. Besides judicial protection, there are legislative protection and administrative protection in the enforcement for the intellectual property. However, compared with judicial protection,the legislation of intellectual property lacks pertinence to specific cases; the administrative enforcement lacks in the function of the enforcement, and the decision is not terminal. Therefore, jurisdiction becomes the most effective method in the protection of intellectual property among the three.With regard to the judicial balance methods of the interest balance of intellectual property, according to the article, the penal protection is of the largest protective force and deterrent among all the judicial protection methods. However, because of the essence of criminal law is the punishment on the severe social hazardous behaviors, the fundamental aim of the criminal prosecution on intellectual property is to maintain the socialist market economic order and the national benefit. The administrative judicial protection provided by the people's court for the intellectual property, focuses on the legal exercise of the judicial review function of the administrative enforcement involving the intellectual property, and on the support of legal administrative enforcement and the correction of the illegal. The administrative litigation of intellectual property is the examination on the administrative behaviors acted by the administrative departments supervising the intellectual property, the correction or denial of the illegal administrative behaviors, and the protection of the civil and corporate legitimate interest which is opposing to the administrative departments. It is the special form of the interest protection of intellectual property. Because it involves broad interest of intellectual property and balances very effectively, the civil litigation of intellectual property is the basic method in the judicial protection of the interest balance of intellectual property. From three aspects—the main types, the basic process and the liability-undertaking modes of the civil litigation of intellectual property, the article provides a discussional introduction on the comparatively prominent issues in present civil litigation of intellectual property. It provides the content base for the following part of specification.Speaking of the aims, principles and procedures of the judicial protection of the interest balance of intellectual property, the balance of interest is the chief aim of the judicial protection of intellectual property according to the article. In order to realize the interest balance, the judicial protection should follow the following principles: 1. the principle of value hierarchy. The value hierarchy principle means that before making decision on the interest balance, the judge should measure in conception the importance and amount of the involved intellectual property interest. The judge should compare the legal interest involved with other kinds of legal interest to see if it has obvious advantage in value, and then make the choice. According to the principle of the value hierarchy, the order of the value hierarchy in measuring the interest subjects of intellectual property is: (1) the interest of the holders of intellectual property should be considered first; (2) the protection of the interest of the intellectual property holders should not conflict with the national interest and the public interest of society; (3) on the condition of the existent interest conflicts between the holders and the nation and public, if they are minor conflicts, the interest of the holders should be protected; if they are major conflicts, the national interest and public interest are intended to be protested. When measuring the content of theintellectual property interest, based on China's temporary historical developmental state and the direction of future developing, the judgment and choice should be made according the principle that the interest of efficiency is above the interest of equity, the interest of sequence is above the interest of benefit, and the social interest is above the economic interest. 2. The principle of proportionality. The principle of proportionality means that when a kind of interest of intellectual property right has to be infringed or limited for the purpose of protecting another certain kind of comparatively superior interest of intellectual property, the tort should not go beyond the necessary degree for the purpose. Even if some other kinds of interest should sacrifice for the realization of a certain kind of interest, the interest damage should be reduced to minimum—because the gain for the others and society at the cost of the infringement or limit should be larger than, even less than or equal to the damage or sacrifice of the possessor of the intellectual property cost by the infringement or limit. In the judicial practice of intellectual property right, the application of the principle of proportionality should be considered in three aspects: adequacy, necessity and proportionality. 3. The principle of coordination. The principle of coordination means that the final judgment of a whole intellectual property case should not only achieve the balance of all the kinds of intellectual property interest, but also coordinate the interest with other kinds of interest. According to the principle of proportionality, when conflicts occur in the intellectual property right, the prior rights should be protected first; when benefits differ and conflicts occur, the right of macro performance should be supported and the right of the micro performance should be denied, in order to achieve the maximization of benefit; all kinds of interest should be comprehensively considered on the basis of the facts of a case. The judicial protection process of the interest balance generally consists of the discovery of interest, the analysis of interest and the balance of interest.Because litigation is the combination of parties exercising litigious powers and courts exercising the judicial powers, this chapter specially deals with two aspects, which have a lot to do with interest balance in judicial powers, of free ruling powers and options for ways of verdict.Free ruling power is another significant part of judicial power executed by judges, especially in intellectual property trial practices. Because the type of these cases has instability compared with traditional civil cases, and principles and stagnancy of laws and rules of intellectual property, judge's free ruling power is a must to rule these litigations and realize interest balance. Viewing from the present fact, we can see free ruling powers have played a proper role in making up for the flaws in legislation. According to the article, giving judges free ruling powers is an actual need in intellectual property trial, but it needs further improving. Improvement of free ruling powers must conform to three principles: principle of lawfulness, principles of fair competition and principles of rational control. Only in this way can we realize the function the free ruling powers have on interest balance of intellectual property. Ways of verdict is a prominent problem facing intellectual property cases now. According to the article, a good ruling should meet the requirement of lawfulness, reasonability and effectiveness. Judging from the present trials, there still exists ways of trial that lacking in reasonability andeffectiveness, some even caused a lot of controversies. Through analyzing three cases that have unreasonability and effectiveness. 1 think, we should pay attention to the study of improving reasonability in trials, especially we should use the way of ceasing infringement as little as possible. Meanwhile, the exploratory application of the economic analysis approach should be practiced with caution.Chapter Three discusses about the interest balance and the application of equivalence principle in patent infringement litigation. This chapter starts with the historical development of equivalence principle, explaining the profound influence the interest balance has on the development. Then 1 have put forward some thinking and suggestion to the equivalence principle's application in ruling patent infringement by analyzing the No.l case that applied equivalence principle in Supreme People's Court. According to the article, the influence the interest balance has on equivalence principle mainly demonstrates as follows: When equivalence principle is applied in litigation of patent infringement, its main purpose is to protect the interest of patentees. Gradually, the limited application of equivalence principle is added to patent infringement litigation with greater concern about the relative party of patentee and the relevant social interests. But, the fundamental purpose of equivalence principle is still the protection for patentee's rights. So I bring up that: 1. when analyzing technical elements by applying equivalence principle, interest balance should be the aim of patent infringement litigation. Meanwhile, when technically judging the equality of sued infringement technology, interest balance should always be the standard. 2. Equivalence principle is the abnormal form in patent infringement judgment. Only when sued products are beyond the literary illustration scope of patent right claims can the court use equivalence to judge if it has constituted patent infringement. 3. Basic methods as whether the forms are basically the same, the function is similar in essence and the similar intention results in accordance with the right claims in general should be taken. In addition, the ordinary technicians of this field can associate with methods as equivalence principle without creative work. 4. Explanation right should adopt the fundamental principle of neither enlarging nor shrinking the claims, in order not to give the patentee the things different from his/her statement. 5. When applying equivalence principle, despite that expert's testimony often plays an important role, people's court can not give up the duty to examine testimony due to its significance.Chapter Four discusses about on cases of trade mark right conflicts causing by historical reasons and the interest balance. In light of the fact that there's a growing number of conflicts on trademark right causing by historical reasons and solution this kind of problems should be based on theories, according to the article, this kind of conflicts in fact bears the characteristic of history instead of law in terms of the assignment of rights and reasonability of original right owner's asking to exercise power. The legal reason of this problem lies in two aspects: First, the current laws, rules and provisions are not coordinate enough. Second, the enforcement of judicial and administrative organs are not coordinate enough. Facing such a situation, when parties resort disputes to litigation, court's mechanically using laws will always lead to the end of the case but not the end of the dispute. Therefore, I have putforward a solution to the disputes on the premise of respecting history. According to the article, to respect history is to understand it, but not to snarl in history. To understand the history isn't equal to judging it. Allowing original right owner to reasonably use the disputed intellectual property is the only way to settle these disputes. Only in this way can we take care of original right owner's right as possible as we can, on the premise of respecting prior legal rights, and then realize the interest balance between society and individuals to the most degree.Chapter Five discusses litigation of unjust competition about intellectual property and interest balance. Law of anti-unjust competition is the additional protection of intellectual property, so its impact on interest balance of intellectual property can not be neglected. According to the actual situation of intellectual property anti-unjust competition litigation, I have provided my opinion on how to realize interest balance in prohibition dispute case in competition industry, unjust competition case about infringing on brand product's special name, package and decoration and reverse passing off dispute case.About prohibition dispute case in competition industry, because whether the compact of prohibition in competition industry is reasonable or not is the foundation of whether laborer and labor right can achieve balance. So, the court should examine in respect for whether the compact of prohibition in competition industry has some rights to protect, whether limits on people, time, scope of the industry, place and whether the compensation the labors have received are reasonable. To these unreasonable compacts of prohibition in competition industry, people's court should realize the interest balance of both parties by examining and direct changing. To those unjust competition dispute cases dealing with infringement on famous brand's special name, package and decoration, protection system on individual case should be taken on these disputes. Therefore, people's court should pay special attention to the certainty of famous brand's name, special package and whether they have constituted confusion when dealing with such disputes. And based on this foundation, people's court should conform that: 1. Judge whether right holder's products are brand products, and whether the package and decoration bears characteristic; 2. According to the fact that general consumers will make mistaken judgments when paying ordinary attention to the similar main parts and whole impression on the products, people's court should make comprehensive analyses on whether similar name, package, decoration has caused misrecognition or confusion; 3. According to the judging order, people's court should make judgments to the whole case to decide whether the names are used for commercial purposes without permission. According to the article, to those anti-passing off dispute cases, ceasing reverse passing off behavior is certainly to protect the interests of victim producers from perspective of individual cases, but because the true value of sanction of reverse passing off behavior lies in maintaining social orders and free competition orders of the market, so when judging whether the behavior has constituted reverse passing off behavior, if only the behavior itself exists can constitute passing off without actual loss caused to producers. In circumstance of little loss or even no in producers, small economic compensation responsibility of reverse passing off actor, people's court can strengthenthe punishment to reverse passing off behavior by forms of civil sanction responsibility.Chapter Six discusses the right conflict and interest balance of intellectual property. The key point of this chapter is the solution principle and clew for the right conflict of intellectual property. According to the article, the rights conflict is a frequent problem which is difficult to be solved probably in the field of intellectual property. The protection of the prior rights, prohibition of confusion and balance of interest are the principles in the judgment for the cases of intellectual property right conflict disputes. The only way to realize the interest balance in the cases of intellectual property right conflict disputes is to respect the different functions of judicial power and executive power, and to choose proper judicial remedy path and responsibility undertaking method.In referring to the two principles in the judgment for the cases of intellectual property right conflict disputes, the protection of prior rights focuses on the acquisition time of intellectual property, and takes it as the measure in judging which one of the conflicting rights should be protected in advance; the principle of confusion prohibition focuses on the exercise method and consequence of right. To the properly judged cases on the right conflict of intellectual property, neither of the two principles can be absent; they should be used together in a case.The judicial discretion in the cases of intellectual property right conflict disputes is the most important question in the study of the right conflict, the ultimate lodging, and the most difficult part. There are mainly issues in two aspects: the permissibility for the court to provide judicial remedy directly and the responsibility undertaking method of the defendant. No matter it is the conflict between the trademark right and copyright or between the trademark right and the right of business name, the fist issue is civil dispute between the right parties. However, because of the administrative nature of the acquisition of the right holder, if the right parties in the lawsuit have dissents in the right source, or claim the solution from the administrative authorization department, the lawsuit becomes administrative-dispute-involved civil lawsuit. Therefore, the people's court should make different disposal on concrete situations of different cases: 1. if the prior right holder merely claims the confirmation on the adscription or the efficiency of disputed right, the people's court should inform that application can be made to related administrative supervising department according to the associate regulation; 2. If the claim of a suit of the prior right holder not only affirms the invalidation of subsequent rights, but also includes civil claims of asking to cease infringement and return unjust benefit and compensate for the loss, then if the parties agree, people's court may first suspend litigation, and may handle the whole case after concerned administrative department has made a ruling over the right dispute of the conflicting parties, or people's court may just dispose the right dispute ; except the judgment of the civil dispute is based on administrative ruling. 3. If prior right holder asks people's court for a trial on the civil right dispute, people's court need not examine the administrative dispute about the right conflicts, it can have a trial directly on the civil dispute causing by conflicts about intellectual property. In term of the way the defendant shoulder his/her responsibility, according to the article,based on the civil litigation character of dispute case dealing with intellectual property, the responsibility people's court orders subsequent right holder or infringer to shoulder also belongs to civil responsibility. Rulings can not count on good wishes thoroughly to settle disputes, but they should be performed within the scope of judicial right's character and power. Therefore, in respect of ways of shouldering civil responsibilities, we should do as follows: 1.Actor should take civil duties according to law after people's court has decided that the shop name used in the enterprise constitute registration mark infringement or unjust competition. In addition, people's court can rule the actor to cease using the shop name but it can not order the actor to change the name. 2. People's court can rule the defendant to cease infringement if the trial has affirmed that the registration of the internet domain name has constituted registration mark infringement or unjust competition. If the defendant's action has caused actual loss to the right owner, people's court can rule the defendant to compensate for the loss. But people's court can not directly ask the defendant to cancel the domain name or allow the plaintiff to register to use the domain name in request of the plaintiff in the ruling.Chapter Seven discusses about litigious right of intellectual property and interest balance. According to the article, at present, some intellectual property owner out of illegal motivation and purpose, utilizing the litigious right endowed by the law to claim litigation with bad malice to cause some damage results to the opponent in the competition, knowing that he himself doesn't have the reason to win the litigation. To these behavior that abusing litigious right of intellectual property, the present laws have relevant general rules but not systematic enough. Therefore, although a law system of intellectual property that allows right holder to fully use the litigious right and meanwhile effectively protects litigious right of intellectual property from being abused is being established, there's still a gap in stopping the abuse of litigious right of intellectual property due to lacking in practical experience, the stagnancy of laws and rules, compensation problems of abusing litigious rights, behavior of casually delivering attorney correspondence, and expansion of protection time without litigious slack system. In view of this situation, I have put forward suggestion to perfect the litigious right of intellectual property: first, make clear rules about compensation problems in abusing litigious rights as soon as possible; second, establish the slack system of intellectual property litigation.; three, perfect and make conditions of claiming non-infringement litigations strict.Chapter Eight discusses about procedure of intellectual property litigation and interest balance. This chapter has described some prominent problems in intellectual property trials such as prohibition order before intellectual property litigation, responsibility distribution proving and ceasing litigation in general also in details.Prohibition order before intellectual property litigation is a significant procedure system our country made according to compact of TRIPS that asked us to make changes on Law of Intellectual Property. And it only exists in Patent Law, Trademark Law and Copyright Law. Because whether prohibition order before intellectual property litigation is issued or not has a great impact on parties' interests in thelitigation, prohibition order before intellectual property litigation is an important link in prohibition order before intellectual property litigation system. A...
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