On Claim Of Intellectual Property

Intellectual property infringement relief system, its content includes the claim of intellectual property which has the nature of claim of absolute right and the claim of compensation for tort which has the nature of creditor’s right and the claim for returning unjustified enrichment. As the defensive right of the protection of intellectual property, the claim of intellectual property is, no doubt, has the important status of the relief system. this article will start from theory and practice significance of the claim of intellectual property, and explain the concept and qualities as well as characteristics of the claim of intellectual property, and analysis the present situation and the insufficiency of relief system of intellectual property rights in our country, and puts forward the author’s advice for building the Chinese law institution of claim of intellectual property.Research on intellectual property right, first of all, to explore its basis on practice and theory. In practice, due to the characteristics of the intellectual property rights infringement, required for the intellectual property rights holders must be given the claim of intellectual property as an important relief rights. In theory, the claim of intellectual property and the other claim of creditor’s rights form a complete relief system of intellectual property infringement, and the content and function of the two claims complement each other. Clarify the distinction and connection between the claims, help determine content and features of the claim of intellectual property shall have, to draw out the discussion below.Second, to clear its basic framework, including the concept, qualities and characteristics of the claim of intellectual property. Due to the same nature and function of the claim of intellectual property and the claim of real rights, therefore, through the comparative study of the two claims, to clarify the theoretical system of the claim of intellectual property. Claim of intellectual property, the concept should include the right to exercise conditions, content and purpose, namely when intellectual property rights has been violated or has the threaten of infringement, the holders of intellectual property can request the infringers to do or not to do a certain behaviors, to restore to the exclusive domination of the object of intellectual property rights. Claim of intellectual property, as a relief for infringement of intellectual property rights, it has to be attached to intellectual property rights, however, many characteristics of the claim of intellectual property make it, to a certain extent, independent from the intellectual property rights, so it is an independent right of claim. In comparison with the claim of real rights further, found that the content of the claim of intellectual property do not have such traditional content of claim of absolute rights as restitution and return the original items, but contain the abandoned claim and the claim to obtain information.Has been clear about the basic theory of the claim of intellectual property, and then to the legislative status quo analysis. Through comparative analysis of national intellectual property legislation practice, find the defects and insufficiency of the system of the claim of intellectual property in China, in order to draw out the direction and goal of building the Chinese legal system of claim of intellectual property.After determining the characteristics of the claim of intellectual property and the content it should have, the next step will be the construction of the legal system in detail in this paper. Claim of intellectual property, the construction of its system, shall follow the principles such as, the private rights of autonomy, the balancing of interests and the prohibition of abuse of rights. And from the Angle of the whole system of the claim of intellectual property and the civil law system, the legislative model discussed. By reference to the foreign legislation pattern, and relevant scholars in our country for advice on the construction of the claim of intellectual property, the author thinks that the construction of a unified system of the claim of intellectual property, and place it in the future civil code is more appropriate. On the one hand reflects the status of the claim of intellectual property in the civil law system, on the other hand also conclude the whole relief system of the intellectual property rights. In the basic mode of the legal system of the claim of intellectual property, will be discussed in more detail what the content of the claim of intellectual property should be included. As stated earlier, the claim of intellectual property has not only the rights like the claim of absolute rights such as the restitution and return the original items, but also the abandoned claim and the claim to obtain information as well as the claim of apologize and eliminate the influence. The life of rights is practice, the subject of practice of the claim of intellectual property should be included the oblige that acquire the original rights by creating activities, as well as the oblige obtain the rights through the derivative acquisition by methods such as licensing contract of intellectual property rights of the licensee. It should satisfy certain conditions in the process of the right to exercise. Generally, it shall present the practical or the like hood of infringement, and it also requires meeting some specific conditions for the specific claims. At the same time, the exercise of any right is not limitless. The exercise of the claim of intellectual property shall also be subject to the conditions of public interest and so on, so that it can accurately reflect the value of the claim of intellectual property.To sum up, this paper mainly discusses the claim of intellectual property from the theoretical and practical significance to analyze and construct the whole legal system, in this paper, the emphases in the author’s insight is to clarify the structure of the relief system of intellectual property rights and the contents that the claim of intellectual property shall have, and the restriction in the process of exercising the rights, and in the building of system put forward some proposals.