Coordination Between The Jurisdiction Over Torts And The Jurisdiction Over Validity In Transnational Intellectual Property

Prior to the end of the 1980 s,courts in Europe and the United States had in fact exercised exclusive jurisdiction over transnational intellectual property infringement disputes.However,whether it is domestic law or international intellectual property protection treaty,it only stipulates that the court of the country of registration has exclusive jurisdiction over the validity of the registered intellectual property rights and does not extend the exclusive jurisdiction to the infringement field.With the rapid development of science and technology since the mid-20 th century,international exchange of intellectual property rights has become more frequent,and the resulting transnational infringement has become more frequent and complicated.It is difficult to effectively solve many complicated transnational intellectual property infringement disputes by adopting the exclusive jurisdiction of European and American countries.Therefore,the reform of intellectual property infringement cases that broke through the territorial exclusive jurisdiction and applied the general jurisdiction rule on torts began to rise.The European courts represented by the Dutch courts have adopted extraterritorial jurisdiction and merger jurisdiction for transnational IPR infringement cases based on the “place of the defendant's domicile” and “infringement place”,and the United States on the other side of the ocean has carried out similar practices.This change in jurisdiction has pushed intellectual property infringement cases out of exclusive jurisdiction,and concentrated infringement cases on courts that are more closely related to the case and more convenient.It is more important to give parties the right to obtain effective remedies and avoid the parties falling into an unfair predicament that forcing them to litigate from country to country.However,transnational intellectual property infringement disputes encounter a thorny problem when applying general infringement jurisdiction rules.On the one hand,the application of jurisdiction rules on tort is an inevitable choice to adapt to the needs of reality;on the other hand,the application of exclusive jurisdiction rules to the validity issue is also a common understanding of countries.When a party raises the validity as a defense,counterclaim,or declaratory lawsuit(invoking a revocation procedure)in a multinational IPR infringement case,how should jurisdiction be distributed? Should we adhere to the exclusive jurisdictional rules for absolute effectiveness,and pass the issue of validity and infringement to the courts of the country of registration? Or is it possible that we can grant jurisdictional courts the power to examine the validity issue under certain conditions? In essence,this is a question of how to choose between the jurisdiction on tort and the jurisdiction on validity.The "soft law" of civil organizations represented by the US "ALI Principles" and the German "CLIP Principles" has carried out in-depth analysis of this issue,and formed a consensus on restricting exclusive jurisdiction and conditionally granting tort jurisdiction courts to examine the validity issue of intellectual property rights.With regard to the jurisdiction rules on torts,practice has proved the practicability and necessity of extraterritorial jurisdiction and merger jurisdiction system.If we abandon the jurisdiction rules on torts,it may cause the parties to fall into the plight that it is essentially no proper court to defend the rights.It is therefore necessary to leave room for the application of the jurisdiction rules on torts.As for the exclusive jurisdiction rules,although it has historical reasons and legitimacy,it has now caused practical obstacles to the international exchange of intellectual property rights and the protection of the rights of the parties,and it is contrary to the value of public law such as right of access to court and doctrine of denial of justice.Only appropriate restrictions on exclusive jurisdictional rules can be considered while the geographical features cannot be completely erased.Based on a variety of considerations,the validity issue of intellectual property rights as a “collateral problem” should be tried by the court of infringement.But at the same time,the exclusive jurisdiction of the courts of the country of registration should be respected too.In short,ensuring the parties' right of access to court,effectively protecting the rights of the parties,and pursuing judgments are the ultimate pursuit of coordinating the jurisdiction rules on torts and the exclusive jurisdiction rules.