On IPR Infringement Liability

The liabilities for infringement of intellectual property rights are a hotspot and perplexing issue in the field of intellectual property law studies. Looking into the liabilities for infringement of intellectual property rights is of great theoretic and practical significance to constructing a complete and scientific system of intellectual property theory, fully protecting the legitimate rights and interests of right holders, crack down on the illegal acts of infringers, and building a fine rule-by-law environment. This paper attempts to make a systematic analysis of the liabilities for infringement of intellectual property rights, researching into such issues as how to determine infringing acts, what doctrines based upon to let infringers bear liabilities, constitutive requirements for infringement liabilities, and what liabilities imputable to infringers. The paper is divided into four parts, numbering some 36 thousand Chinese characters.Part one involves the determination of infringing acts for intellectual property rights. Infringing acts for intellectual property rights are the unlawful practices of infringers who exercise the exclusive rights belonging to intellectual property owners without authorization or cause damages to the other interests of right holders, including those encroaching upon such intellectual property rights as copyrights, trademark rights, patent rights, trade secret rights, and rights against unfair competition. Basically, there is a complete set of similar steps in determining infringing acts for various intellectual property rights. By following the steps one by one, a judgment can be made as to whether or not an act is an infringement. However, some differences exist with regard to determination procedures for individual intellectual property rights. Infringing acts for intellectual property rights are characterized by intangibility in infringed objects, duality in infringement of rights, high tech and concealment in infringementmethods, and large scale, wide scope and dichotomy in infringement forms.Part two involves doctrines of liability fixation for intellectual property infringements. In China's law of infringement, the doctrines of liability fixation consist of the doctrine of fault liability, doctrine of no-fault liability, and doctrine of equitable liability. Fault presumption is a special case for the doctrine of fault liability, and thus, it is just a shift of the burden of proof, not an independent doctrine of liability fixation. Mainly, there are three theories for the doctrines of liability fixation for intellectual property infringements: Fault liability theory, mixed liability theory and no-fault liability theory. However, each theory has its own insurmountable defects. With regard to the acts of infringement for intellectual property, this paper suggests that right holders have no need to prove if actors are faulty when the right holders request the actors to desist from infringements, and must prove the fault of the actors only in special cases stipulated by law, i.e., taking no-fault liability as the doctrine and fault liability as an exemption. Right holders must prove the fault of the actors when the right holders request the actors to offer compensation for damages, and have no need to prove if the actors are faulty only in special cases stipulated by law, i.e., taking fault liability as the doctrine and no-fault liability as an exemption. The case-by-case liability fixation theory with a view to different infringing acts and liabilities comply with not only China's laws in relation to intellectual property rights, but also related regulations in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights.Part three involves the constitutive requirements for the liabilities for infringement of intellectual property rights. The complexity of infringing acts for intellectual property rights and the diversity of civil liabilities make the four-essential theory (illegal acts, facts of damage, causality relations between illegal acts and facts o...