Judgment Of Judicial Practice On Restricting The Exercise Of The Right To Request For Cessation Of Infringement Of Patent In China

In the field of patent right,when the right holder demands both compensation for damages and cessation of infringement,as long as there is infringement of patent right,the court will support the plaintiff’s request,and the theory of "cessation of infringement of course" comes into being.But in some special cases,the judgment of the infringer to stop the infringement will damage the public interest and bring serious inconvenience to the public.the Interpretation on Some Issue Concerning the Application of the Laws to the Patent Infringement of Disputes 2(hereinafter referred to as " the Interpretation of Patent 2")article 26 to stop the infringement of the patent holder,on grounds of public interest to restrict the right of claim make clear a regulation,but the "national interest",the essential connotation of "public interest",elements of how to define attribute? What specific types are involved? What is the nature and calculation method of "reasonable expenses" ? The Patent Law and its related legal norms did not stipulate.Therefore,this paper analyzes and studies the cases of judging the infringer not to stop the sued action by citing Article 26 of the Interpretation of Patent 2,hoping to get the inspiration of the interpretation of the core elements of Article 26 of the Interpretation of Patent 2.But at the same time,it can be found in the judgment of public interests and the patentee and the public interests between inadequate measure is discussed,the reasonable costs and damages for chaos,citing the public interest is directly related to the limit of claiming for the patentee stop the infringement,in the present our country under the background of comprehensive strengthening protection of intellectual property rights,restricting the rights of the patentee is particularly important,therefore,we need to combine theoretical research to solve.Through the study of the related theories of public interest in the academia,the definition of public interest is obtained.Referring to the legislative,judicial and scholar studies within and outside the domain,public interests can be further divided into seven types,such as national security and public security.In terms of interest measurement,this paper holds that only when the public interest is guaranteed to the maximum,can the individual interest be fully realized;From the perspective of sustainable development,only when the public interest is developed can the personal interest be realized in the long run.In some cases,the property nature of patent is more obvious,and the patentee attaches more importance to the property interests.At this time,the public interest nature of patent is relatively weakened.For the justified reason of public interest,even if the infringement is not stopped and reasonable fees are paid,the initiative of the patentee in this case will not be discouraged.In general,when the private right interest of patent conflicts with the public interest,the public interest should be paid more attention to and protected.Next,this paper evaluates the exercise of the right to stop infringement on the grounds of public interest in judicial practice.First,it is necessary to judge whether the interests endangered when the infringement is stopped are public interests(at this time,the definition of public interests becomes the premise).Second,does stopping a tort necessarily harm the public interest? Third step,if the public interests will be damaged,and the interest measurement is needed,will stop the infringement behavior in public interest damage is more,and do not stop the infringement of the patent holder have less damage situation(the premise to get priority for public interests can transcend personal protection),if it exists,namely can decide not to stop the infringing act.In the evaluation of the case,it also responds to the questions raised in the previous article.As for the issue of reasonable expenses,the nature of reasonable expenses should be civil compensation rather than civil compensation,so reasonable expenses can not include damages.When determining the specific amount of reasonable expenses,the parties may be ordered to determine it through consultation;However,if there are more evidence and more factors to refer to,the court can make a judgment directly.The reasonable cost here is not equal to the reasonable use fee when the normal transaction,but the patent license fee can be used as the basis for determining the cost,but also refer to other factors,on this basis,including the number of infringing products,use scale and scope;The innovation and practical value of the patent;The value contribution rate of the patent involved to the infringing product,etc.In view of the problems existing in the limitation of the right of request to stop infringement of patent right in China’s judicial practice,this paper puts forward the following three suggestions: firstly,the law should make specific provisions on the public interest,so that judges can have the law to follow and the value basis for judgment when defining the public interest;Secondly,the case guidance system of our country can be used to provide a normative analysis process for the judge when arguing that the patentee should stop infringing the claim right on the grounds of public interest,so as to improve the judicial unity and adjudicative efficiency.Finally,the judge should strengthen reasoning and argumentation in the judgment documents,so that the public can truly identify with the judiciary,believe in and respect the law,ensure the justice and fairness of the judgment to the greatest extent,and protect the rights of the patentee and public interests.