Research On Jurisdiction Of Foreign-related Intellectual Property Rights

The subject of jurisdiction of foreign-related intellectual property rights has increasingly become a focus of the science of law recently. To require into it, we should begin with the region of intellectual property rights. The region of intellectual property rights reflects in two aspects: the principle of regional administration and the principle of regional choice of law. The former can be divided into the principle of regional administrative jurisdiction and the principle of regional jurisdiction. We only discuss the principle of regional jurisdiction in this text. This principle is usually reflected in the exclusive jurisdiction of the cases of the validity of foreign-related intellectual property rights, cases of tort of foreign-related intellectual property rights and cases of contracts of foreign-related intellectual property rights in practice. Ordinarily, the cases of the validity of foreign-related intellectual property rights connect directly with the actions of a government, so they are clearly regional. The cases of tort of foreign-related intellectual property rights can be divided into four kinds of suit. They are the cases of domestic tort of intellectual property rights, the cases of foreign tort of intellectual property rights without internal permission, the cases of tort of intellectual property rights without permission overseas and the cases of foreign tort of intellectual property rights without permission overseas. The cases of tort are the most important ones among all cases of intellectual property rights. And it is why each country is cautious to their jurisdiction. Cases of contracts of foreign-related intellectual property rights are less regional, as they are agreed by all parties of the contract.The meanings of the cases of foreign-related intellectual property rights vary in every period in history. When the principle of regional jurisdiction is utterly applied, it means the cases of domestic intellectual property rights, in which at least one of the parties is a foreigner. When the principle of regional jurisdiction is oppositely applied, it means the cases of foreign-related intellectual property rights or the cases of intellectual property rights occur overseas. In the opinion of the author, the latter are the real cases of foreign-related intellectual property rights. As a result of the outspread of jurisdiction of intellectual property rights and the practice of jurisdiction of intellectual property rights, the factors of the cases of foreign-related intellectual property rights change from nationality of person to nationality of right and later to nationality of behavior, which is also the symbol of the era when the principle of regional jurisdiction of intellectual property rights is applied oppositely. In practice, the development of jurisdiction is different from one kind of cases of suit to another. To register or not is very important on the jurisdiction of the cases of the validity of foreign-related intellectual property rights. The breakout of the principle of regional jurisdiction is not singular because copyright usually needs no booking. However, the principle of regional jurisdiction is applied absolutely in practice as the property right of industry usually needs booking by special organs. In the cases of foreign-related intellectual property rights, the attitude of the court connects directly with the nationality of the intellectual property rights. Besides the cases of domestic intellectual property rights, the court are apt to judge the cases of executing domestic intellectual property rights without permission overseas and part of the cases of executing foreign intellectual property rights without permission overseas, but the expanding of jurisdiction is not the breakout of the principle of regional jurisdiction but in virtue of the principle of the lowest limit of connection, the principle of related connection and the principle of uniform protection in economic union. The direct breakout of regional jurisdiction is familiar in the cases of foreign-related intellectual property rights contracts. Domestic law usually permits the parties of a contract to select a court in agreement, but does not ask that cases must be judged by the country exclusively in which the right emerges.Although cases of innovative jurisdiction spring out, there is no total breakout of the regional principle. In virtue of legislative and judicial technology, the principle of regional jurisdiction is applied in the cases, and the jurisdiction is expanded in the frame of the principle of regional jurisdiction. This is a concept totally different from the concept of direct breakout of the principle of regional jurisdiction. Although both create the bran-new practice of jurisdiction, they entirely differ from each other in character. So are the principle of the lowest limit of connection, the principle of related connection and the principle of uniform protection in economic union. They have created the brand-new practice of jurisdiction of intellectual property rights, but this innovation takes in the frame of the principle of regional jurisdiction, which has not been broken out. The reason that intellectual property rights is so firmly regional is that it close connects with the booking action of a government which embodies a country's dominion. And the necessity of booking depends on characters of intellectual property rights. They are immateriality, economy and property. The purpose of dominion is to maintain a country's profit in maximum, but the life of legal doctrine lies on meeting the actual needs of the society, so the trend of the innovation of the practice of jurisdiction and the expanding of the scope of jurisdiction is necessary today, when subjective and objective needs are both increasing. Concerning with the importance of jurisdiction of intellectual property rights, every country is cautious. As a result, both of the innovation and expanding should be taken in the frame of the principle of regional jurisdiction in a small scope and technically. So it is very difficult to overthrow or break away the principle of regional jurisdiction. Meanwhile, in order to insure the available execution and avoid the obligations of admitting and executing the judgments of a foreign court which come from the expanding of administration, the innovative practice taken by every court is cautious and tactical. For example, to make a person and his action domestically in virtue of the principle of the lowest limit of connection and the principle of related connection, or to expand the administration in virtue of the principle of uniform protection in economic union, or to limit the effectiveness of judgments made by its own court, or to admit and to execute a foreign judgment according to its domestic law, or in virtue of holding of public order and to make a judicial explanation skillfully.There is neither special legislation of domestic jurisdiction of intellectual property rights, nor single statute of jurisdiction of foreign-related intellectual property rights in domestic legislation system nowadays. In the practice of confirming jurisdiction of intellectual property rights, our courts usually accord to Civil Procedure Law of People's Republic of China and the correlative judicial explanation of the Supreme People's Court, and the cases of foreign-related intellectual property rights are basically apply the regulations of jurisdiction which are the same as the cases of domestic intellectual property rights. That is to say, the cases of the validity of foreign-related intellectual property rights are judged by the court of the country from which the right comes into being, the cases of tort of foreign-related intellectual property rights are judged by the court of the defendant's habitation or the tort, and the cases of contracts of foreign-related intellectual property rights applies the regulations of jurisdiction which is the same as the common contract case. Nowadays, our country is transferring from an intellectual-property-import country to an intellectual-property-innovate country, so we must balance the intellectual property rights'profit both in the near future and in the long future. We should neither make jurisdiction of intellectual property rights international blindly, nor judge all cases by our court. We must stand at the short-term profit, think of the long-term profit and advance tactically step by step. Firstly, we must set a clear cognition of macroscopical development trend of jurisdiction of intellectual property rights. Then, on the topic of jurisdiction of foreign-related intellectual property rights, we should not adopt a one-knife-cut legislative or judicial mode, but classify the cases of intellectual property rights from different angle, and control the scale of jurisdiction according the maturation of every kind of property and the level of the existing legislation, executing and judicature, and exert the legislative technique and the function of judicial explanation. Finally, we should strengthen the regional cooperation of jurisdiction of foreign-related intellectual property rights and the cooperation with developing countries.