A Comparative Study Of Patent Infringement Remedies Across The Taiwan Straits

Invention and creation is not only a manifestation of human mind,but also a reflection of national scientific and technological level.Through continuous invention and innovation,it can also effectively drive rapid economic development,enhance market competitiveness and improve people's living standards,so as to make the country into the ranks of advanced countries in industrial science and technology.With the increasingly close commercial interaction between the two sides of the Taiwan straits,patent infringement and its relief is bound to be a difficult problem that must be solved jointly by the two sides of the Taiwan straits law.Therefore,a comparative study of the patent infringement system between the two sides of the Taiwan straits,on the one hand,can help enhance mutual understanding,on the other hand,can also learn from each other,for the improvement of China's mainland legal system to provide reference.The first part is the premise of patent infringement relief across the Taiwan straits--namely,the comparative analysis of patent infringement judgment,including four aspects of patent infringement judgment benchmark,object,process and principle.Generally speaking,the first three principles are basically the same,but in terms of the determination principle,except for the principle of comprehensive coverage,the principle of equivalence,the principle of estoppage,and the principle of prior technical hindrance,the principle of inverse equivalence has been adopted in Taiwan,but not in mainland China.It is necessary to adopt this principle from the point of view of the existing legal norms.The second part is the foundation of the relief of patent infringement across the Taiwan straits,namely the comparative analysis of the composition of patent infringement liability.By contrast,Taiwan has clear provisions on the constitutive requirements of patent infringement liability.Secondly,the patent law of mainland China is vague on whether to adopt the constitutive requirements of "fault",and the academic circle is also in dispute.This paper holds that no matter from the perspective of coordinating patent law and tort liability law,or from the perspective of conforming to TRIPS,the constitution of patent infringement should return to the constitution of general tort liability,that is,it is necessary for the infringer to have subjective fault.The third part is the comparative analysis of the patent infringement relief system on both sides of the Taiwan straits.The biggest characteristic of Taiwan lies in the "decriminalization of patent infringement",which makes the remedy of patent infringement return to civil law.In mainland China,there are "administrative mediation","civil relief","administrative relief" and "criminal relief".In terms of civil relief,the patent rights of both sides of the straits have the civil claim of "damages","exclusion of infringement" and "restoration of reputation".The practice has proved that the "all-directional and multi-level" patent infringement relief system in mainland China is in line with the actual situation in mainland China,and there is no need to be self-abased,let alone deliberately follow the example of Taiwan and adopt the legislative policy of "eliminating the crime of patent infringement".