Study On Judicial Application Of Defense System Of Legal Source Of Patent Infringement

In recent years,continuously strengthen the protection of intellectual property rights in our country,the surge in patent applications at the same time,the number of patent infringement action also hit a new record,in almost half of the patent infringement dispute,the defendant reference the "patent law" the seventieth the legal source of defense responses to reply,but in judicial practice,the court’s approval rating is generally low.In this article,through selection of different variables on the result of the court verdict,found the following problems: first,the constitutive requirements that do not have a unified standard,although subjective "I don’t know" detailed provisions for the legislation will actually don’t know and should not know,but different guidelines set by the court trial of the system of review standards are different.Second,the relief function of the system to the parties is limited.In addition to the patentee’s relief mechanism is not perfect,it also does not provide the corresponding protection mechanism for the non-infringing sellers.Third,there is no uniform reference basis for the burden of civil liability.In the patent infringement lawsuit,the defendant’s defense of legal source is not supported by the court,then the patentee needs to compensate for the economic loss caused by the infringement of patent rights.If the court determines that the defendant is a bona fide infringer,it still needs to bear the reasonable cost of safeguarding their rights.However,in our legislation,there is no uniform reference basis for these two types of responsibilities.In order to answer these questions and taking into account the current situation of the judicial application of the system,the following improvements are proposed.Firstly,the judgment standard of the subjective state of "not knowing" is clarified,so that the warning letter can really play its role in judicial practice.Secondly,the "legitimate source" and its proof standard should be clarified,and the examination of evidence should not blindly pursue the unified "commercial transaction" standard.Thirdly,the procedure of appending the third party as co-defendant is clarified,and the right of appending the third party can be given to the original defendant and the court as appropriate.Finally,to refine the degree of civil liability burden,we can further refine the scope of compensation through judicial interpretation,and increase the provisions of security deposit from the legislative level.