Along with the development of international economics and trade contact, it has already appeared legal conflict in the intellectual property rights (hereafter IPR) domain. In order to solve the legal conflict of IPR satisfactory, it is important to formulate the conflict rules of IPR in the laws of various countries. Therefore, this article studies on the legislation practice of the current application rules and the legal conflict of IPR by the method of comparison and real diagnosis analysis and then draws on the manner of formulation of conflict law and gives some proposals on the relevant formulation of China.Chapter one is the generalization of conflict of IPR. The author firstly discusses the condition and fundamental reasons of legal conflict and then discusses those of IPR. On this, the author discusses the theoretical condition and practical basis and then proposes that the legal conflict of IPR has existed indeed.For the IPR, the principle of National Treatment of IPR in international treaties made the nationals from every member state enjoying the same treatment in all signatory states. Meanwhile, many counties acknowledge the potency of the foreign intellectual property law in their countries under a certain condition, it stemming from their own benefits and the need of their foreign policies. Therefore, there have been the conditions that rising of legal conflict of IPR and the existence of the legal conflict of IPR have the academic basis and practical foundation. As the result of the limitation of uniform substantive laws of IPR in the solution of legal conflict, at present, the important method of solving legal conflict to protect IPR is still the conflict rules.The method of application of intellectual property law has very important influence to the formulation of intellectual property conflict rules. Therefore, in chapter two, the author discusses some nowadays theories of application of IPR. At present, there are various theories of application of intellectual property law, such as using the law of the country which is requested to protect the rights, the law of the country which firstly awards the IPR, the law of the country which awards the rights, the law of the country where the behavior occurred and the law of the country of court. These theories all have their rationalities in a certain degree, but also have their flaws, that is, they are unable to effectively solve the legal conflict of intellectual property rights lonely.Therefore, some scholars proposed a theory that courts can foundational take the law of the country which is requested to protect the rights, and simultaneously take the law of the country which awards the IPR firstly. Along with the fundamental research of the international intellectual property rights is unceasingly thorough, and on the foundation of theory,"the separation theory"arose at the historic moment."The separation theory"takes the view that different items of the legal relationship of the IPR should separately apply different laws. It is further discussed that, regarding to the content, the scope, the term of validity and the protection way of IPR, courts should apply the law of the country which is requested to protect the rights. Regarding to the production, the existence, the power and the potency of the IPR, courts should apply the law of the country which awards the IPR firstly in certain condition."The separation theory"overcomes the former shortcoming that the junction of conflict rules of IPR was too stiff, and can adapt the complex and special need of IPR cases well.But"the separation theory"also has some insufficiencies, such as that the theory only apply the law of the country which is requested to protect the rights and the law of the country which awards the IPR firstly, but the theory does not refer to the law of the country which awards the rights, the law of the country where the behavior occurred and so on. And it is not distinguish the main-body relation to the compound relation of IPR.Chapter three is important in this article. Here the author briefly introduces the basic theory of conflict rules and then discusses the formulation of conflict rules about the main-body relation and the compound relation of IPR.In the discussion of the formulation of the conflict rules about the main-body relation of IPR, the author discusses the formulation of conflict rules about the main-body relation of the right of potent, trademark and copyright.The patent right has close relationship with the country which awards the right firstly, and the conflict rules of patent right should be formulated in this way: the items such as the production, the existence, the potency and the power of patent right should apply the law of the country which awards the patent right firstly.Regarding the trademark right, the establishment of the trademark right should apply the law of the country where the trademark right is registered or used firstly. The content and the potency of the trademark right should apply the law of the country which is requested to protect it. This method is consistent with the value goal of the international protection system of trademark right.The application of law of copyright is more complex. The ownership, production, existence and the nationality of a published work should apply the law of the country where the work is published firstly and obtains the copyright at the same time. The ownership of the unpublished work should apply the author's nationality law, residence law or regularly inhabited area law. A copyright that is obtained in the duty work has close relation with the employee's work, and it should apply the law which adjusts the employment contract.The extent of protection and the protection deadline of IPR as well as the relief method that provides protection to IPR should apply the law of the country which is requested to protect the rights.The compound relation of IPR is a legal relationship that IPR itself has already produced and effective existence as the legal relationship that the object forms once more. The compound relation of IPR mainly includes the infringement relations and the transfer congruent relations of IPR.Regarding to the infringement of IPR, some countries propose that it should apply the law of the country which is requested to protect the rights in legislation practice. But, this conflict rules does not refer to the application, that is, how to apply the law when places of the right is abused and the place that is requested to protect the right are not only. Therefore, when the requested countries are not only, the courts may choose the law of the country which has closest relation with the case. The transfer of IPR is generally carried on by contract, therefore, during the process of IPR transfer, the application principle of contract law also may apply for the transfer contact of IPR. In the domain of transfer contact of IPR, various countries accept the Autonomy of Will principle. Therefore, the conflict rules of the transfer contract of IPR may be formulated like this: regarding to the transfer contract of IPR, the litigants may choose the law that apply to the contract by agreement, if the litigants do not have agreement or the law that the litigants choose has violated one side or both sides of the litigants'benefits, court may apply the law that has closest relation with the contract. In the formulation of the conflict rules of the transfer contract of IPR, the method of characteristic fulfillment is worth studying.At last, in chapter four, the author gives some recommendations of the formulation of conflict rules of IPR for China.At present, our country does not have explicit stipulation of the application of the IPR law, in the domestic laws, we have not seen the IPR conflict rules, in judicial practice does not acknowledge that there is legal conflict in the IPR domain. However, along with the economical integration development in the world, the strict region principle of IPR is disadvantageous to the international society's exchange of our country.The formulation of conflict rules of our country should be established on the foundation of respecting the legislation host power of our country, the promotion of the economy of international society, the development of the cultural and the equality of the parties of IPR. On one hand we should provide comprehensive protection to the foreign IPR, in order to obtain the advanced technology from the developed country. On the other hand, we should give dual attention to the balance of benefits, namely the balance of the benefits of parties of IPR, the benefit of social public and the national interests, and we should avoid the disadvantageous consequence that harm the benefits of country and social public that caused by excessively protection of IPR.In one word, the author believes that the formulation and application of the law of IPR will improve in China, through the effort of the scholars of international civil law.
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