Civil law generally stipulates the standards or conditions for the determination of infringement, while intellectual property law more specifically stipulates the manifestations of intellectual property infringement. We should not only grasp the forms and standards of infringement in general according to the civil and commercial law and the tort law, but also grasp the norms and points of each kind of infringement in detail according to the intellectual property laws of various ministries, so as to complete the task of law application in the trial of intellectual property infringement disputes. By studying the patent law, trademark law, copyright law and other intellectual property laws, we will find that legislators generally stipulate the corresponding types and specific forms of infringement in these laws. Although there are so-called modifications in these provisions, on the whole, the intellectual property law describes the infringement by listing and makes various normative provisions on the infringement, which constitutes the legal standard for identifying the infringement of intellectual property rights. Therefore, when we study the determination of infringement, we must first study and discuss the legal standards for the determination of intellectual property infringement. In the current intellectual property law, there are four ways to express the provisions of intellectual property infringement: one is to clearly stipulate that in the chapter of legal responsibility of the corresponding law, after the civil and other legal responsibilities are stipulated in the same article, the infringing acts that should be investigated for civil responsibility are listed one by one, such as copyright law and computer software protection regulations. The second provision is that in the chapter on intellectual property protection, there is a special provision on infringement and a special provision on the legal liability that these acts should bear, such as the Trademark Law.
Third, there is a special article in the general provisions of the law that patent infringement is prohibited by law, while there is a special article in the chapter on the protection of rights that lists the acts that are not regarded as patent infringement and those that are not liable for compensation [6], and the legal responsibilities that should be investigated are stipulated in this chapter, such as the Patent Law [7]. Fourth, a special chapter provides for infringement or illegal acts, and another special chapter provides for legal responsibilities to be investigated, such as the Anti-Unfair Competition Law [8]. To sum up, the intellectual property law generally stipulates the contents of the corresponding intellectual property rights, enumerates and stipulates the infringement, exceptions and restrictions, and the legal responsibilities that should be borne. Legal liability is generally civil legal liability and administrative legal liability. Therefore, when we identify the infringement of intellectual property rights, we should pay attention to all the legal facts stipulated in the intellectual property law, that is, the legal fact system necessary for infringement. Avoid any one-sided and subjective views on the problem. This is especially important for judges who hear cases. Generally speaking, the right granted by law refers to the behavior scale that the obligee is allowed to take in order to satisfy his own interests and is guaranteed by the legal obligations of others, that is, the behavior scale allowed by law. It usually consists of the right of positive behavior, the right of claim (the right of negative behavior) and the right of requesting state protection [9]. These three parts of the right structure can exist independently and inseparably, and they are in an inseparable unity. It should be said that the law first affirms the right of the parties to active behavior and is at the center of the right structure; At the same time, its realization depends on the obligations of the obligor and the state protection when the obligations are not fulfilled. In the field of intellectual property law, it is particularly obvious that national laws give the parties corresponding intellectual property rights.
When the intellectual property law gives rights to the parties, it generally clearly stipulates the positive rights of the obligee and the various power ranges of this right. At the same time, due to the intangible nature of intellectual property rights, the law focuses on various functions and gives each right a clear scope of protection. The scope of protection is obviously different from the scope of various powers because of its technicality and professionalism. If the invention patent right protects the invention technical scheme that meets the patent conditions; The claims contain the exact scope of the technical scheme protected by law. Another example is the registered trademark right, and the trademark law protects the graphics or characters that meet the trademark conditions when the obligee applies for trademark registration, or their combinations. In terms of copyright protection, the scope of protection focuses on works that meet the conditions of works. The scope of protection of trade secrets is the technical scheme or proprietary technology that meets the requirements of trade secrets, as well as other business information. The key is how to distinguish them from known technologies. When identifying the infringement of intellectual property rights, we must first determine the legal protection scope of the intellectual property rights accused of infringement; After the scope is determined, analyze the scope of each function of this right. As some scholars said when analyzing the determination of patent infringement, "one product will not infringe another product, but it will infringe a patent claim;" Therefore, to identify the infringement, we must first determine the scope of the right of claim. "
This is obviously different from the scope of protection of property rights, which is the starting point and one of the difficulties in the identification of intellectual property infringement. In the practice of intellectual property trial, some cases are difficult to handle, and it is difficult to determine the scope of rights protection in many cases from the beginning. On the whole, the identification of all kinds of intellectual property infringement has a roughly the same identification process, and judges will generally make an objective judgment on whether the behavior to be identified is infringement according to this process or thinking. The identification process brings the judge's subjective will into a relatively fixed mode of thinking, which facilitates the judge's understanding into a visible and easy-to-operate procedure and ensures that the judge's inner conviction is more in line with objective reality and more objective and true. Although the identification of various intellectual property infringement acts has its own characteristics, their uniqueness determines the basic steps of the identification process as follows: the first step is to determine the scope of rights and protection;
The second step is to analyze the elements of its protection scope;
The third step is to propose and determine the scope of realization of the rights of the accused infringer;
The fourth step is to analyze the elements of the realization scope of its rights;
The fifth step is to compare the scope and concrete composition of the two, and accurately use various judgment principles and methods; Step six, judge the identity or similarity;
The seventh step is to make a decision on infringement or not. Although the form and emphasis of the above-mentioned identification process in various judgments of intellectual property infringement are slightly different, the basic thinking and judgment process of forming judges' evaluation evidence are the same. Evidence plays an important role in the determination of intellectual property infringement, and in many cases, it plays a decisive role. The acceptance of evidence and the sharing of burden of proof make the already complicated determination of infringement more complicated. This article just wants to remind readers of the evidence problem, and I don't want to go into details here. China's anti-unfair competition law includes infringement of trade secrets. In view of the fact that trade secrets are an independent right, other unfair competition behaviors related to intellectual property rights are different from them, and this paper will discuss them separately.
See Wang Liming's civil law? Tort law, p. 309-3 1 1. [3] For example, Article 45 (8) of the Copyright Law of People's Republic of China (PRC) stipulates "other acts that infringe copyright and copyright-related rights"; Another example is the provision in Item 4 of Article 38 of the Trademark Law of People's Republic of China (PRC) that "other damages are caused to the exclusive right to use a registered trademark of others". In addition, it is generally believed that acts of unfair competition are not only acts stipulated in the Anti-Unfair Competition Law, but also other acts that violate the principle of good faith in the General Principles of Civil Law.
Articles 45 and 46 of Chapter V of the Copyright Law first stipulate civil liability and administrative liability, and then list the corresponding eight and seven kinds of infringement. Article 30 of the Regulations on the Protection of Computer Software first stipulates civil liability and administrative liability, and then lists eight kinds of infringement. [5] Article 38 of the Trademark Law stipulates acts of infringement of registered trademark rights, Article 39 stipulates civil and administrative legal responsibilities, and Article 40 stipulates criminal legal responsibilities related to the crime of counterfeiting registered trademarks. See paragraph 2 of Article 63 of the newly revised Patent Law. [7] Chapter I General Provisions Article 11 of the Patent Law stipulates that any civil subject shall not engage in any act without the permission of the patentee. Chapter VII Protection of Patent Right Article 62 stipulates the circumstances that are not regarded as infringement, and Article 60 stipulates the legal liability that infringement shall bear. Chapter II of the Anti-Unfair Competition Law stipulates unfair competition, and Chapter IV stipulates legal liability.