| Rights are an abstract human construct,which only can be perceived through certain social facts.However,social facts may show the fake appearance of rights(illusion),which is the manifestation of a false state of rights.Based on the consideration of information cost,it is impossible for people to endlessly investigate and search for rights information in transactions to eliminate misunderstandings,so the fake appearance of rights is inevitable.The key is how to protect the trust of third parties in the fake appearance of rights.In real right,possession and registration are the demonstrating paradigm of personal property and real property,even if the possession and registration facts represent a false state of rights,if a third party trusts them,the law will regard them as true.At this time the authentic in the law is more important than that of the facts,we call it the Public Trust principle in the real right.Of course,the fake appearance of rights in intellectual property also exists,but how to protect the trust of third parties in appearances is not yet clear.Further question is that what is the demonstrating paradigm of intellectual property.Only when the fake right holder makes a disposition without the permission of the true right holder,will the third party’s trust protection of the fake appearance be highlighted.And at this time,it will form a legal relationship between the true right holder,the person without the right to dispose of the right(the fake right holder)and the third party.Among them,the protection of bona fide third parties is the most worthy of attention.At present,the research on the trust protection of intellectual property rights is limited to the level of bona fide acquisition of intellectual property rights.The research vision is relatively limited,and there is a lack of systematic research.This thesis is not yet able to make a systematic study of the protection of trust in the whole field of intellectual property rights,and only takes the protection of bona fide third parties in technology transactions as the research topic.Although the point is small,it does not prevent this article from discussing this issue from the macro perspective of the principle of trust.The thesis will try to integrate the specific trust protection system in technology transactions under a unified framework,and hope to make a modest contribution to the systematic construction of intellectual property trust protection.In addition to the introduction and conclusion,this article has six chapters.Chapter 1 is the dynamic systems theory of bona fide third party protection in technology transactions.This chapter lays the methodological basis and subsequent research directions of the whole text.As a legal evaluation method,the dynamic system theory of civil law can provide a reasonable analytical framework for the measurement of the intrinsic value factors(principles)of the law,and can provide theoretical support for both legislative theory and hermeneutic theory.Since the protection of bona fide third parties in technology transactions involves the measurement of multiple complex interests and value factors,the introduction of dynamic systems theory methods is of great significance for this study.The dynamic system structure of bona fide third-party protection in technology transactions includes three parts:the internal principle system,the external factor system and the dynamic evaluation effect.The underlying principles are the principle of trust,the principle of attribution,the principle of technological innovation and the principle of proportionality of relief.External elements are set by intrinsic principles and are used to measure the degree of realization or infringement of the principles.The dynamic evaluation effect includes obtaining the pursued legal effect,the right to implement the non-exclusive license of the technology,the compensation for the performance of interests and the compensation for the benefit of trust,etc.,and the intensity of the protection effect shows a hierarchical change from high to low.The elements of the dynamic system have a co-action effect,and the sum of the satisfaction of each element dynamically determines the corresponding evaluation effect.In contrast to the dynamic system,the fixed element system(rule),which is actually an optimal combination of the principles measured in the dynamic system.In order to ensure the stability of the law and the efficiency of the judiciary,it is necessary to realize the fixation of dynamic systems in combination with the characteristics of trust protection in the field of technology transactions.In technology transactions,there are specialities in the protection of bona fide third parties,including the involved principles,the attributes of the object of protection,the assessment of technical value,the means of publicity of technical property rights,and the characteristics of the transaction,which determines that the existing trust protection system is not necessarily applicable,and there may be new ways of protection.Chapter 2 is the right publicity relevant to forming good faith of the third party.The publicity of rights is closely related to the formation of third-party trust.The publicity of rights includes the publicity of the right possession and the publicity of changes in rights.The former generally refers to the publicity method,like possession and registration,and the latter refers to the publicity method,like delivery and transfer registration.By reflecting on the principle of publicity and the principle of public trust of real right,it can be found that the demonstrating paradigm of rights is the core of the principle of publicity and the logical basis of the principle of public trust,which plays a decisive role in the formation of trust in third parties;while the form of publicity of rights changes depends on the choice of the mode of change of rights,and only plays an auxiliary role in the formation of trust in third parties.Regarding the public method and its effect of the ownership of technology,the situation of technical secrets is more complicated,because the nature of their rights is very controversial.However,whether from the perspective of the nature of rights or tort law,the right of technical secrets already has the essence of erga omnes,so the concept of ownership of technical secrets is established.This article divides possession into institutional possession and private possession.The former is the use of institutional power to control the object,such as registration,and the latter is the use of private power to control the object,such as physical control of personal property.The right holder can cut off the transmission medium of information-signal,by the private force of confidentiality measures,and others cannot receive the signal to reproduce the homogeneous structure of the information,which means the possession of the technical secret information is realized.As a result,the possession can be used to represent the right of technical secrets.There is no doubt registration in the patent register is the demonstrating paradigm of ownership of a patented technology.Patent right registration itself has a high reliability,although the reliability of technical secret possession is not as good as patent right registration,but it is higher than the possession of personal property,there is no substantive theoretical obstacle to granting public trust effect to patent right registration and technical secret possession,but the specific bona fide acquisition system design must be carefully considered.In addition,the change of technical ownership adopts the publicity effectiveness doctrine,and the delivery and registration have the forming effect.For the right to implement technology licenses,from the perspective of the provisions of the current law,the mode of change of rights,and the actual needs,the theory of usufruct should be adopted,so the right to implement technology licenses is a derivative of technological ownership and it need public method.The right to implement technical secret licenses is made public by possession,while the right to implement patent technology license is keeping a record in the Patent Office.Because the right to implement the technology license cannot be transferred without the authorization of the right holder,neither of them has public trust effect.In terms of the public method of rights changes,the right to implement the technical secret license adopts the public-effective doctrine and the delivery has the forming effect,while the patent technology license implementation right adopts the public confrontation doctrine,and the record of license has confrontational effect.Chapter 3 is the determination of the good faith of a third party in a technology transaction.Good faith is a state of subjective cognition that is unknown,which must be deduced by means of external objective circumstances.This process will inevitably bring in the factor of value judgment,so in most cases,good faith judgment is not a purely factual determination about “unknown”.Instead,it is often associated with negligence.The determination of negligence depends on whether the third party has breached the duty of care,and once the breach of the duty of care is negligence,and judging minor negligence or gross negligence is nonsense,so good faith means unknown and no negligence.The essence of a bona fide determination is the judgment of the reasonableness of reliance,if the third party knows,the trust does not exist;if the third party is negligent,the trust is unreasonable.The operational mechanism of good faith determination includes three parts: factual factors,rational person standard,and psychological mechanisms of judges.Factual factors can be divided into trust facts and distrust facts.The former creates trust in third parties and the latter weakens the basis of trust of third parties.The rational human standard is more effective than the subjective standard to maintain the reasonable expectations of society and the stability of the social order,but in order to alleviate the rigidity,it should be made specific a case-by-case.By placing the perspective of the concrete rational person,the judge examines whether the rational person will form a trust in the representation of rights and other trust facts,and whether the distrust facts significantly weaken the basis of trust,and then draw conclusions of good faith on the basis of comprehensive judgement.Chapter 4 is the bona fide acquisition of technology by a bona fide third party in a technology transaction.The method of the acquisition of time limits,monetary compensation and the granting of the right to implement the non-exclusive license cannot replaced the bona fide acquisition system.When the basis of trust and attribution are strong,and it is conducive to technological innovation,it should be given stronger protection to a bona fide third party.The bona fide acquisition system meets this requirement.This article clarifies that some of the existing doctrines hold that there is already a so-called "bona fide acquisition" rule in the trade secret system,which is actually an exemption from liability for cessation of infringement.The bona fide acquisition system has a unique value and cannot be replaced by monetary compensation and exemption from liability for cessation of infringement.Although the reliance of the possession of technical secrets is less reliable than registration,when the attributability of the true rights holder is strong,it can also fill the lack of trust,and bona fide acquisition system can be be applied to technical secrets.Based on this,the legal structure of the bona fide acquisition of the ownership of technical secrets and the right to license exploitation is discussed.For the bona fide acquisition of patented technology,patent technology trading practice has a very strong demand for this,and it need urgent support of theoretical research.Although the registration of patent rights has a strong reliability,because of the difficulty of substitution of patent rights,it should adopt a relative public trust model,so the attributability of the real right holder must be considered.Subsequently,the bona fide acquisition system of ownership of patented technology and the right to license exploitation of the patented technology is specifically designed.Chapter 5 is other measures for the protection of bona fide third parties in technology transactions.The system of prescription acquisition of the right to use intellectual property,the lapse of the right and the limitation of the claim to stop the infringement can all achieve the effect of allowing a bona fide third party to obtain the right to implement the technology.However,the operative and compatibility of the limitation of the claim to stop the infringement is higher,and this system based on the interests of both parties is a measure to protect bona fide third parties,which is the most appropriate way to achieve this effect.This chapter also explores the justification and applications of this system.The normative connotation of article 874 of the Civil Code of the People’s Republic of China has a variety of interpretation possibilities,but after analyzing its subjective element and behavioral element,the normative connotation of this article should be understood as granting a bona fide third party the right of recourse against the transferor or licensor.Liability for damages for breach of contract is also an important way to protect reliance,but article 850 of the Civil Code stipulates that a technical contract without the right to dispose of technology is invalid.Because of that,a bona fide third party in the technology transaction loses the right to claim damages for breach of contract.However,the validity of contract and the validity of the act of disposition should be distinguished,and the validity of the technical contract without the right to dispose of technology also helps to achieve a balance of interests between the parties,so article 850 is not reasonable.Chapter 6 is the institutional realization of bona fide third-party protection in technology transactions.This chapter is intended to translate theory into law,and transform theoretical achievements into institutional practice.At the level of statutory law,there are generally two ways to improve the existing institutional system: interpretation theory and legislative theory.In addition to the judicial interpretations of the highest judicial organ,the interpretations of judges on the theory of interpretation have only the effect of individual cases,but they are conducive to achieving fairness in individual cases.The perfection of the enactment law through the theory of legislation has universal effect,it can effectively solve practical problems and achieve uniform application of law,but it cost more and need more time improve.This thesis takes into account both the theory of interpretation and legislation,and takes the perfection of the enactment law as the final destination.Before the revision of the statute law,the judge can adopt the theory of interpretation to achieve the appropriateness of the case.At the level of judicial proceedings,a bona fide third party should bear the proof burden of the constituent elements of the reliance protection rule,but the attributability elements of the true rights holder should enter the presumption procedure after the bona fide third party proves the basic facts.Dynamic systems theory can help judges trace back the principles behind the trust protection rules,provide a basic framework for the judgement of principles,and find the proper direction of legal interpretation and argumentation. |
PDF Full Text Request