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Research On The Examination Standard Of Intellectual Property Litigation Behavior Preservation

Posted on:2021-01-08Degree:MasterType:Thesis
Country:ChinaCandidate:J YangFull Text:PDF
GTID:2416330605454329Subject:legal
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As an important relief measure,the preservation of intellectual property litigation plays an important role in protecting the legal rights and interests of intellectual property owners.Although the standards of review in the preservation of intellectual property litigation were stipulated in the substantive law of intellectual property,due to the late start of the system of preservation of intellectual property litigation and its imperfect judicial interpretation,the problems such as the lack of specific provisions of the "social public interest" review standard,the "irreparable damage" review standard and the ambiguity of the status of other review standards appear in the legislative level;in the trial practice,the problems of considerations on the "measurement of the interests of both parties" review standard.On December 12,2018,the Supreme People's Court issued the "Provisions of the Supreme People's Court on Certain Questions of the Law Applicable to the examination of cases of preservation of intellectual property disputes ",which provides for the refinement and improvement of the standards for the examination of preservation of intellectual property litigation.The purpose of this paper is to further analyze and study the factors of the review standards in the preservation of intellectual property litigation from the perspective of the judicial interpretation.This paper is mainly divided into the following parts:The introduction is divided into three aspects: first,it mainly introduces the background of the topic selection of this paper.The academic circles have been discussing the review standard of intellectual property litigation preservation,and no effective solution has been reached.On December 12,2018,after the supreme people's court issued the provisions of the supreme people's court on several issues concerning the application of laws to the examination of intellectual property dispute preservation cases,the supreme people's court specified in detail the examination standards for intellectual property litigation.From the perspective of judicial interpretation,this paper studies the review standards of behavior preservation in intellectual property litigation,finds out the problems,and puts forward corresponding Suggestions for improvement.The second is a review of references,such as the main viewpoints of scholars such as Yang jing,liu fang,bi xiaoxiao,etc.Finally,the main innovations and research methods of this paper are introduced,mainly by means of comparative study,case analysis and data analysis.Through the analysis of the judicial practice of intellectual property litigation behavior preservation of the application of the review standards,analysis and summary of the main problems.In the first part will firstly define the intellectual property litigation behavior preservation in China,and briefly introduce the basic theory of intellectual property litigation behavior preservation system.Secondly,it discusses the legislative history of the examination standard of intellectual property litigation preservation in China,including the content of the present legislation of the examination standard of intellectual property litigation preservation.Among them,in the discussion of the current situation of legislation,it is carried out mainly through the framework of the construction and development of the system.In the second part,based on the evaluation and analysis of the review standards in the judicial interpretation of behavior preservation in the first part,the author analyzes the problems such as the lack of consideration in the review standards of "bilateral interest measurement",the lack of specific provisions in the review standards of "social public interest",and the ambiguous status of the review standards of "irreparable damage" and other review standards.The reason for the lack of consideration in the examination standard of "measurement of bilateral interests" is that there is a lack of specific interpretation of "measurement of bilateral interests",which leads to the lack of specific laws and regulations to be followed by the court in the examination process of the preservation of intellectual property rights,so it seldom considers this standard."Public interests" review standards for lack of specific provisions,mainly on "public interests" should review standards detailed stipulation in the judicial interpretation has two divisions views: one view is that the intellectual property rights itself has the social public welfare,to protect the legitimate rights and interests of the holder of the intellectual property right is to protect the social public interest,"public interests" should no longer detailed review standard.The other side believes that the detailed regulation of the examination standard of "social public interest" is an important embodiment of the measurement of private interests and social interests,and an important guarantee for the protection of the legitimate rights and interests of the respondent and the public interests,so it should be specified in detail.The main reason for the ambiguous status of the "irreparable harm" review standard and other review standards is that the judicial interpretation of behavior preservation presents the four review standards in an enumeration legislative mode,so the relationship between them cannot be clear and the status between them is also vague.The third part will mainly describe the extraterritorial reference of the review standard of intellectual property litigation preservation,which is mainly based on the common law countries.Among them,mainly through the interlocutory injunction(or temporary injunction)of common law countries and the temporary measure of false detention of civil law countries to carry on the discussion.As for the reference of "the circumstance of damage to human sexual rights" in the "irreparable harm" examination standard,the third examination standard determined by the British judge in the American Cyanamid case is mainly referred to,that is,the damage is not monetary,such as libel,nuisances and commercial secrets.The review standards of behavior preservation in intellectual property litigation in China mainly refer to the conditions of applying for permanent injunction established in the case of e Bay in the United States.In the fourth part,three corresponding Suggestions are put forward to improve the review standards of intellectual property litigation preservation in China.First,the review standards of "mutual benefit measurement" are considered comprehensively.Secondly,it classifies the examination standard of "social public interest".Finally,the core status of the "irreparable harm" review standard should be clarified.
Keywords/Search Tags:Intellectual property litigation, behavior preservation, examination standard
PDF Full Text Request
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