Limiting Claim On Intellectual Property Injunction

As the saying goes,"A right without remedy is not a right".In the model of "Original right-remedy right" private right structure,the study of civil rights relief is a vital subject in the field of civil law.As an claim of absolute right.,the claim of intellectual property right constituted the important aspect of the intellectual property relief.Intellectual property rights are regarded as real right and claim of intellectual property was generated and transferred with intellectual property right.Faulty is not the requisite for the clam of injunction.In the judicial practice,the basic provisions for the civil remedy of intellectual property rights are based on the relevant provisions of the General Principles of Civil Law and the Tort Liability Act.This approach neglects the characteristics of intellectual property rights.It has led to the abuse of liability for cessation of violations,and imbalances of interests have occurred from time to time.Under this background,it is necessary to build limitation of clam of intellectual property injunction.This paper starts with the concept and connotation of the clam of intellectual property injunction and analysis the necessity of constructing the the clam of intellectual property injunction in intellectual property system.the limitation of clam on intellectual property injunction is different with intellectual property restriction system.In order to pave the way for building the limitation of clam of intellectual property injunction system in our country,this paper discuss the basis of theory on cessation of infringement in intellectual property rights.This paper constructed the limitation of clam on intellectual property injunction system by comparison other countries regulation on injunction,analyzing the differences in judging ideas between Anglo-American Legal System legal system and the civil law system.Combined with current situation in legislation and judicature,this paper provide some suggestions to found the system limitation of clam on intellectual property injunction.Chapter I The overview of limitation of clam on intellectual property injunction.Limitation of clam on intellectual property injunction is that when the right holder or interested party requests stopping the infringement,however,the injunction may cause a substantial damage to the parties interest or public interest,the people's court may not support the request of the obligee or interested person,but compensate with other methods.Limitation of clam on intellectual property injunction mainly divided into three parts:restrictions based on public interests;limitations based on the abuse of rights;restrictions on the third party acting in good faith who had paid reasonable fee for producets,and restrictions on claim of standard essential patents.The premise of limitation of clam on intellectual property injunction is intellectual property rights holders or interested person has the right to claim intellectual property rights.The claim to intellectual property rights is independent to claim to peoperty.It does not require fault as an elements,resulting from the creation of intellectual property rights.Based on the independence of intellectual property claims,limitation of claim on intellectual property injunction is not a kind of limitation of intellectual property rights.The traditional rules on injunction is difficult to apply to intellectual property relief needs.Lower of intellectual property rights conversion rate and the need of intellectual property power strategy are also the urgent to build limitation of claim on intellectual property injunction.Chapter ? The theoretical basis limitation of claim on intellectual property injunction.Jurisprudence,civil law,and economics of law provide theoretical basis for limitation of claim on intellectual property injunction,and pave the way for the application of conditions and foundation of limitation of claim on intellectual property injunction.From the point of view of jurisprudence,corrective justice emphasizes the equilibrium after the distribution of tort liability.Balance theory of interests required that the law should pay full attention to the interests of right holders,users,and the general public in the process of adjusting social relations.There is still certain limition on injunction when intellectual property rights holders claim forinjunction.And the principle of proportionality is precisely to make a reasonable explanation for the limits of this degree.Complete compensation and prohibition of gains in the tort law provide civil law support for limitation of claim on intellectual property injunction.Limitation of claim on intellectual property injunction can be founded with the help of theory on no abuses of claim right on injunction in property law,tolerance resiposibility in civil law,protection third parties in good faith system.The rules of property and liability in economics of law emphasize that injunction is still the basic way of intellectual property protection.However,automatical injunction does not achieve Pareto optimality.Under the Game theory,automatical injunction hinders technological innovation and R&D,because of the high transaction costs and asymmetric information.Chapter III Analysis on limitation of claim on intellectual property injunction in comparative research methods.This chapter uses comparative research methods,analyzing the system of limitation of claim on intellectual property injunction in other countries from the perspective of horizontal and vertical angles.The United States took the Ebay case as cut-point.The case before ebay case,the court mainly rejected the injunction based on protection of public interest.In the post-ebay era,the four-element rule gradually came into reification.In Germany,the separate regulations of intelltual property stipulated that the third party's interests should be treated with caution when courts issued an injunction.At the meanwhile,the limitation of claim for injunction of intellectual property rights law has already formed relatively perfect.In addition,German courts also frequently break statutory regulations by interpreting the principles of prohibition of abuse of rights and good faith to deal with the increasingly problems on intellectual property troll.In the respect on injunction of standard essential patents,the case" Orange Book" was the cut-off point,and Germany courts gradually developed a judicial decision rule that stipulated the limitation of the standard necessary patents.In Japan,there is no provision on the limitation of claim on injunction.However,Japanese courts have found a solution to this problem from the theory of tolerance responsibility.Chapter IV The applicable conditions for limitation of claim on intellectual property injunction.Not all claims for ceasing the infringing act can be limited.The limitation of claim on intellectual property injunction can not be applied to moral rights.It can only be limited to situations in where courts issue injunction would harm national interests and public interests,or may break balance of interests between the two parties,or obey the needs of third parties in good faith,and standards-essential patents violate fair,reasonable,and non-discriminatory principles.Because of the difference of nature of the behavior and the legal basis of the limitation,the application of different conditions are not same.Chapter V The status quo and problems of limitation of claim on intellectual property injunction in China.On the basis of normative analysis of the legislative process and the empirical study of existing judicial practice of c limitation of claim on intellectual property injunction in China.The author believes that the following problems exist in limitation of claim on intellectual property injunction in China.In the field of legislation:(1)intellectual property injunction is not regulated in intellectual property laws;(2)basic principles of civil law are not stipulated in intellectual property laws;(3)Article 70 of the patent law is improper connection with article 25 of judicial interpretation of patent II.On intellectual property judiciary:(1)Misuse of the public interest principle;(2)Improper handling of infringement by the third party in good faith;.(3)Alternative measures is improper..Chapter VI Construction of limitation of claim on intellectual property injunction in China.First,legislation on intellectual property rights remedies should be linked to civil law.In the relationship between intellectual property law and civil code,we should consider whether IP remedies require separate legislation independently.If intellectual property rights remedy relief cannot be regulated into the civil code independently,it is necessary to set intellectual property rights limitation of claim on intellectual property injunction clauses in the special intellectual property law.Secondly,how to design of the specific terms of limitation of claim on intellectual property injunction in special intellectual property law?The author suggest to take the legislative model of "general + exception","summary +enumeration".When it comes to intellectual property infringement,o cease the infringement is a general rule.Limitation of claim on intellectual property injunction shold be exceptions.The reason why to limit claim of intellectual property relief is to promote and protect public interests and the third party in faith,or to balance of interests between the two parties.Owing to this round of amending intellectual property law has almost been finished,limitation of claim on intellectual property injunction canbe regulated in judicial interpretation.In addition,courts can follow the ruels in guiding cases so that the decisions of limitation of claim on intellectual property injunction canbe standardized and unifiedy.At the same time,we should not clarify the nature of alternative measures,but also provide different alternatives for different types of restrictionsOnly in this way can not infringe on the interests of the rights holders and violate the value goal of intellectual property remedies as well as limitation of claim on intellectual property injunction.