The Study On Patent Infringement Warning Notice And Its Regulation

Patent infringement warning is that the patentee found the patent has been infringed,by sending infringement warning to safeguard their legitimate rights.The purpose of the patentee is to stop the infringement and avoid the infringement litigation.However,the existing law of our country lacks the standardization of the patent infringement warning,and the patent infringement warning gradually becomes a sharp weapon against the competitors.The patentee has the right to protect its rights and interests,but the law should also regulate the behavior of safeguarding the rights.Because the law also protects other's legitimate rights,and sometimes patentee aim to disrupt the order of the market competition in the name of safeguarding the patent right.Therefore,it is very necessary to regulate the patent infringement warning.To standardize the patent infringement warning,we must make clear whether the patent infringement warning is justified.With regard to the legal nature of the patent infringement warning,this article combines the several theories,it has self-help color,but not self-help action.In the past,the judiciary authorities of our country often used the “negligence” to judge the justification of the patent infringement warning behavior.It is directly related to the conclusion of the warning behavior justified or not.The logic of “negligence” is clear,but there are certain problems.“The theory of rights” requires that the patentee's ability to predictthe result of infringement,which greatly increases the cost of rightsprotection for the patentee,leading to the difficulty of achieving the purpose of negotiating and resolving disputes through patent infringement warnings.“The theory of rights” is different from “negligence”.It is mainly to determine whether the patent infringement warning belongs to the proper exercise of rights.“The theory of rights”overcomes the formalism of “negligence”.However,how to prevent the excessive application of the standard and thereby ensure the predictability of the law is worthy of in-depth study by academics and judicial scholars.This article combines the above-mentioned theoretical research and other country's experience to protect patent rights and maintain effective competition in the market.It divides into three levels: The first level is whether patent infringement warnings are justified.Take the result of infringement as the basis for judgment.On the second level,if there is “fabrication,false information or misleading information”in the infringement warning sent by the patentee,which damages the business reputation of the competitors or the reputation of the goods,the behavior of the rights holder is unfair.On the third level,even if a warning message is sent that is true,it does not necessarily constitute unfair competition.The justification of the patent infringement warning at this time must be combined with the comprehensive analysis and confirmation of the object of warning,warning method,and warning content.In the end,I compare the related regulations in mainland China,the United States,Britain and Taiwan,and give some suggestions for the patent infringement warning system in mainland China.