Exception To The Application Of Stopping Infringement In The Field Of IP

As a special kind of private right, Intellectual Property has its unique features which reflect on the way of bearing civil liability. Stopping infringement acts should not be the sole liability for tort and it can only be one of the alternative way. The judicial organs should make the comprehensive considerations about interests among the owner, user, disseminator and public interests. Intellectual Property Law itself has the nature of public interest which make us have to give a specific definition.The first chapter is mainly about the present situation and questions of the exception of stopping infringement acts in the field of Intellectual Property. This chapter is demonstrated in three aspects. The first is the analysis of the legal provisions and application effect about “stopping infringement acts”. I find that, in legal provision, “stopping infringement acts” is in the first place among all the way of tort liability. It has been used so much in judicial practice that it almost become the inevitable result after an infringement acts. I think the reason is that “stopping infringement acts” is the most direct and rapid way of right relief. Secondly, I list the four typical cases which represent the breakthrough, the confusion, the problems and the pity. From the four aspects, I make some analysis about the problems in judicial practice. These are the prerequisite for the following studies.The second chapter discusses the legitimacy of public interest can exclude the liability for tort of “stopping infringement acts”. This is the focus of this thesis. This chapter is also demonstrated in three aspects. Jurisprudence is the first. For example, Intellectual Property itself has the nature of public interest. It is not a purely private right, which is different from human rights. Therefore, protection of Intellectual Property must be subject to public advantages. This is why Copyright Law use fair use system and Patent Law use compulsory license system to leave the necessary space for protecting the public interests. These protection is necessary, but it is far from enough. Intellectual Property Law itself need to deal with the balancing of the interests. In the process of protection of Intellectual Property, balancing of interests is the key point which should not be ignore. Secondly, I analyzed from the perspective of economic justification. Law is set for social services. So, in line with economic development is what the set of law should in consideration of. Typically, take the patent troll which appears in the process of patent protection for example, some of the phenomenon such as using the above mentioned protection regulation to damage the public interests often happen. What is more, in many aspects, we are not have the upper hand when we compete with the big company at the international level. It is an imposition for the less competitive enterprise to make a fully understood of the patent status especially the international patent. Lastly, I make an analysis from the judicial spiritual guide. The judicial spiritual guide is an inconvenient element in our country judicature practice. The set of the law should always based on the practical situation of our country.The third chapter is about the definition of “public interests”. It is the further research after the analysis of rationality and necessity. This chapter is demonstrated in five aspects. First of all is the feasibility study of defining “public interests”. Some scholars fundamentally deny that “public interests” can be defined. But in my mind, clarifying something blur is our duty. Second aspects is about the necessity to define “public interests” from the angle of rights should not be unlimited expansion, and public interests should not be infringe by private interests, and so on. Thirdly, I discourse analysis how to define “public interests”. What manner I choose is transparency provisions along with itemize. In my opinion this is the best choose. Fourthly, according to the definition manner what mentioned in the above, I itemize seven interests what I think we should give protection. Lastly, for the system may be involved, I also give my suggestion about improvement. Limiting to the length of this thesis and the author’s research capacity, I only analysis from two aspect. On the one hand is whether the court should take the initiative to invoking this counterargument. On the other hand is change of the damages as a result of this counterargument.