What kind of right is intellectual property and what is its legal nature?
Intellectual property is essentially a civil right and a special civil right.
Identification of intellectual property infringement
Intellectual property takes tangible and intangible "knowledge" as the object, and the determination of intellectual property infringement is a difficult point in trial practice, and there is also great controversy in theoretical circles. The determination of tort is an important basis for whether the defendant bears civil liability and what kind of civil liability he bears, and it is also one of the key links in the composition of intellectual property tort liability. For the people's court, it is the judge who, with the help of the evidence, cross-examination and judgment of both the original and the defendant, confirms the accused behavior with legal effect carried out by the defendant through civil proceedings.
When determining the infringement, the following factors should be considered in accordance with the provisions of the intellectual property law and combined with individual cases:
1. Review whether the infringed right is valid. Examining the validity of rights is the first job that judges should do after accepting cases of intellectual property infringement, which reflects the statutory examination of intellectual property rights, because only legitimate rights are rights protected by law. To examine whether an act is an infringement of intellectual property rights, we must first examine the validity of rights. For example, whether the content of copyright is legal, whether it is within the protection period, whether the patent right is valid when the infringement occurs, whether the trademark right exists legally and so on. In practice, this kind of review is simple and easy, and judges can take the initiative to take the form of review. For example, China's Copyright Law stipulates the principle that prohibited works are not protected by law. In copyright infringement cases, when it comes to whether the content of the work is prohibited, the defendant often does not make a defense in this respect, because once the work is recognized as prohibited, the plaintiff's petition will not be supported and the defendant may bear certain legal responsibilities, so both the original defendant and the defendant may avoid this issue. If the judge does not take the initiative to review, it is difficult to accurately identify the entire legal relationship; Similarly, in other types of intellectual property infringement lawsuits such as patent rights and trademark rights, judges should also take the initiative to review the validity of rights.
In addition to examining the validity of the plaintiff's rights, whether the object or source of the lawsuit is legal also belongs to the scope of examination. First of all, intellectual property is a civil right, and the obligee can freely exercise his legal rights within the scope of law. The obligee can exercise his rights by himself, or transfer all or part of his rights to others through authorization, transfer and inheritance, and others will put his rights into the field of production and exchange to obtain benefits. If the defendant can prove that he has the right to a legal source, it cannot be regarded as infringement according to the provisions of jurisprudence and intellectual property law.
Second, the exercise of rights is not only exercised under the subjective will of the obligee, but also has rights other than the subjective will of the obligee. In particular, intellectual property, as an intellectual achievement, plays a great role in promoting the development of social productive forces. If the obligee absolutely monopolizes or does not disclose the results for his own benefit and in order to obtain more profits, it will not be conducive to social progress. Therefore, the law also imposes some restrictions on intellectual property rights, which are mainly reflected in the restrictions on "fair use", statutory license and compulsory license of copyright; Restrictions on prior implementation of patent right, temporary transit and non-profit license. At the same time, it should be noted that the trademark right does not have the above rights restrictions. If the defendant's behavior is an act prescribed by law, it can also be regarded as an act with a legitimate source of rights, and it is not an infringement.
2, review the accused things or behavior and the elements of the plaintiff's rights are the same or similar. In the trial of intellectual property infringement cases, judges usually compare the accused infringing object or behavior with the plaintiff's right object before making the same or similar judgment. For those complicated cases that infringe on written works and artistic works, as well as high-tech cases that infringe on patent rights, trade secrets and layout design rights of integrated circuits, experts or professional appraisal institutions are usually used for technical comparison.
Make an identity judgment. When the constitutive requirements of two cases are exactly the same, it is easy to make the same judgment, so as to determine the infringement. But in the case of only partial similarity, it is much more difficult to judge
In this case, it is necessary to separate the same part and examine whether it is original and can be protected as an independent intellectual property object. If the same part is original, it means that it can constitute the object of intellectual property rights, or it can be regarded as the same, and the infringement can be established.
Make a similarity judgment. The characteristic of this kind of infringement is that there is no creativity in its constituent elements, but some immaterial changes have been made to the intellectual achievements of others. Its purpose is to avoid being identical with other people's intellectual property rights and stealing other people's intellectual achievements. When making this judgment, different judgment standards should be applied according to different types of cases. In view of trademark infringement, infringement of well-known product catalog names, packaging and decoration, infringement of design patent rights, infringement of trade name rights, infringement of copyright and other infringement cases. Because the characteristics of such products are intuitive, they are generally judged by the eyes of ordinary people; In professional infringement cases, such as infringement of software copyright, infringement of invention or utility model patent right, infringement of integrated circuit layout design right, etc., the judgment standard of ordinary professionals should be adopted. Because in these cases, the infringer has made some non-creative changes to the rights of others, which are invisible to ordinary consumers, ordinary technicians in the industry can naturally associate the infringing products with the same effect as the original technology. If there is no substantial change between the two, it should be considered as approximation and the infringement is established.