Difficult to quantify is the biggest problem in intellectual property cases
2018-10-09 04:02:02
Reporter: Where are the difficulties in intellectual property litigation?
Lawyer Zhang Yongyi, Senior Partner of Dadi Law Firm: Intellectual property cases are more complicated and involve technical issues. Lawyers and judges need to have a background in science and engineering education. Otherwise, it will be very difficult, because there are many terms that involve all aspects. They will not be able to deal with them by “blitzâ€. Lawyers and judges need to understand the technical issues very deeply.
In the 1990s, there was a special intellectual property court in Beijing because it was more difficult to handle than a general civil case. The degree of specialization of judges is also getting higher and higher. Generally speaking, there are deeper accomplishments in certain fields, and they are getting closer to expert scholars.
Gao Tianle, Director of the Legal Department of Beijing Fanghao Intellectual Property Agency Co., Ltd.: There are many laws that cannot be applied directly. For example, the similarity of the article, how many words are similar, legally inconclusive, basically relying on the judge and the inner measure, the law only says that plagiarism is prohibited.
Intellectual property cases involve technical comparisons, similarity comparisons, etc., and the conclusions drawn are often different or even contrary to the conclusions of "seeking the truth".
It is difficult to determine the amount of compensation. According to the principle of compensation in China's intellectual property law, the amount of compensation or the amount of compensation can be determined according to the amount of profit or loss. Now China has raised the upper limit of freedom from 500,000 yuan to 1 million yuan.
In fact, in intellectual property cases, it is difficult to judge how much interest of the plaintiff was damaged by the infringement of the defendant and how much interest of the defendant was obtained because of the infringement of the plaintiff's rights.
Many problems are difficult to quantify and are the biggest problem in intellectual property cases. For example, in the Patent Law, the Regulations and the Judicial Interpretation of the Supreme People's Court, there is no clear criteria for approximating the design. Only the authorization procedures in the Review Guide issued by the State Intellectual Property Office There are detailed instructions.
The provisions of the "Guidelines for Review" have also undergone a process of transformation, from the 2001 "mistaken, mixed" as the same standard of judgment, to the "overall significant impact" standard established after July 2004.
The current judgment standard means that in the eyes of the general consumer, the difference between the controlled design product and the prior design does not have a significant impact on the overall visual effect, and the two constitute an approximation.
In fact, it is unscientific to rigorously set standards because society is developing and qualitative standards should be dynamic.
Reporter: In terms of intellectual property rights, what are the gaps between China and Western countries?
Zhang Yongyi: Compared with foreign countries, in terms of legislation, there are laws and regulations in China, and it should be said that there is no gap. However, some regulations are not detailed enough, and operational and rationality are also lacking.
The legal framework for intellectual property rights has not been built in China for a long time. It will be much richer in the legal experience of the United States in the past one or two decades than in the United States with a history of hundreds of years. In terms of sentencing, there is not much disparity between China and Western countries.
Gao Tianle: The principle of compensation in Chinese law is different from that in the United States. The United States is a punitive damages. China is a compensation for filling, that is, how much compensation depends on the losses caused to the other party.
In legislation, the best link between China and the world is intellectual property rights. China has joined the WTO and signed an agreement on intellectual property rights.
Reporter: New trends in the field of intellectual property?
Zhang Yongyi: Copyright, patents and trademarks are the three pillars of traditional intellectual property. They are the norms of traditional economic life. However, with the development of the Internet, new technologies and concepts continue to expand, and the legal norms of intellectual property rights will continue to expand. The Anti-Unfair Competition Law, the Anti-Monopoly Law, also belongs to the field of intellectual property.
Gao Tianle: The scope of intellectual property protection is getting bigger and bigger. With the development of the network, the right to network communication has emerged. In Western countries, genetic technology and online marketing methods are currently considered as patent protection.
In addition, the rights holders of individual intellectual property rights improperly exercise their rights, and the abuse of rights harms the public interest. For example, the right holder should monopolize certain achievements involving the common field and use the superficial legal form to harass the competitors without any evidence. At this time, it should be subject to the principle of fair use, non-infringement, and honesty and credit. To maintain a balance between private rights and the public interest.
There is a new voice in the industry. It is necessary to sort out the boundaries between rights holders and the public domain to prevent monopoly arising from excessive protection of intellectual property rights. It can be seen that some companies that only create standards to make profits may face some changes in the future.
Lawyer Zhang Yongyi, Senior Partner of Dadi Law Firm: Intellectual property cases are more complicated and involve technical issues. Lawyers and judges need to have a background in science and engineering education. Otherwise, it will be very difficult, because there are many terms that involve all aspects. They will not be able to deal with them by “blitzâ€. Lawyers and judges need to understand the technical issues very deeply.
In the 1990s, there was a special intellectual property court in Beijing because it was more difficult to handle than a general civil case. The degree of specialization of judges is also getting higher and higher. Generally speaking, there are deeper accomplishments in certain fields, and they are getting closer to expert scholars.
Gao Tianle, Director of the Legal Department of Beijing Fanghao Intellectual Property Agency Co., Ltd.: There are many laws that cannot be applied directly. For example, the similarity of the article, how many words are similar, legally inconclusive, basically relying on the judge and the inner measure, the law only says that plagiarism is prohibited.
Intellectual property cases involve technical comparisons, similarity comparisons, etc., and the conclusions drawn are often different or even contrary to the conclusions of "seeking the truth".
It is difficult to determine the amount of compensation. According to the principle of compensation in China's intellectual property law, the amount of compensation or the amount of compensation can be determined according to the amount of profit or loss. Now China has raised the upper limit of freedom from 500,000 yuan to 1 million yuan.
In fact, in intellectual property cases, it is difficult to judge how much interest of the plaintiff was damaged by the infringement of the defendant and how much interest of the defendant was obtained because of the infringement of the plaintiff's rights.
Many problems are difficult to quantify and are the biggest problem in intellectual property cases. For example, in the Patent Law, the Regulations and the Judicial Interpretation of the Supreme People's Court, there is no clear criteria for approximating the design. Only the authorization procedures in the Review Guide issued by the State Intellectual Property Office There are detailed instructions.
The provisions of the "Guidelines for Review" have also undergone a process of transformation, from the 2001 "mistaken, mixed" as the same standard of judgment, to the "overall significant impact" standard established after July 2004.
The current judgment standard means that in the eyes of the general consumer, the difference between the controlled design product and the prior design does not have a significant impact on the overall visual effect, and the two constitute an approximation.
In fact, it is unscientific to rigorously set standards because society is developing and qualitative standards should be dynamic.
Reporter: In terms of intellectual property rights, what are the gaps between China and Western countries?
Zhang Yongyi: Compared with foreign countries, in terms of legislation, there are laws and regulations in China, and it should be said that there is no gap. However, some regulations are not detailed enough, and operational and rationality are also lacking.
The legal framework for intellectual property rights has not been built in China for a long time. It will be much richer in the legal experience of the United States in the past one or two decades than in the United States with a history of hundreds of years. In terms of sentencing, there is not much disparity between China and Western countries.
Gao Tianle: The principle of compensation in Chinese law is different from that in the United States. The United States is a punitive damages. China is a compensation for filling, that is, how much compensation depends on the losses caused to the other party.
In legislation, the best link between China and the world is intellectual property rights. China has joined the WTO and signed an agreement on intellectual property rights.
Reporter: New trends in the field of intellectual property?
Zhang Yongyi: Copyright, patents and trademarks are the three pillars of traditional intellectual property. They are the norms of traditional economic life. However, with the development of the Internet, new technologies and concepts continue to expand, and the legal norms of intellectual property rights will continue to expand. The Anti-Unfair Competition Law, the Anti-Monopoly Law, also belongs to the field of intellectual property.
Gao Tianle: The scope of intellectual property protection is getting bigger and bigger. With the development of the network, the right to network communication has emerged. In Western countries, genetic technology and online marketing methods are currently considered as patent protection.
In addition, the rights holders of individual intellectual property rights improperly exercise their rights, and the abuse of rights harms the public interest. For example, the right holder should monopolize certain achievements involving the common field and use the superficial legal form to harass the competitors without any evidence. At this time, it should be subject to the principle of fair use, non-infringement, and honesty and credit. To maintain a balance between private rights and the public interest.
There is a new voice in the industry. It is necessary to sort out the boundaries between rights holders and the public domain to prevent monopoly arising from excessive protection of intellectual property rights. It can be seen that some companies that only create standards to make profits may face some changes in the future.
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