Research On The Limitation Of Stopping Infringement Of Claim In Chinese Intellectual Property

Stopping infringement is a common way to bear civil liability,which is mainly applied to protect the property rights and personality rights of the right holder.Intellectual property rights are quasi-physical rights.The way to stop the infringement of this civil liability is one of the most important remedies after the right holder suffers infringement.One.The interests involved in intellectual property law mainly refer to the intellectual activity results created by intellectual product creators through intellectual activities,that is,the interests generated by the production,dissemination and use of intellectual products.Because of the openness and sociality of knowledge products,this kind of interest involves both the private rights and interests of intellectual property rights holders and the social and public interests that the state needs to realize through intellectual property law.Intellectual property law must not only protect the private rights and interests of intellectual property rights holders,but also meet the purpose of intellectual property law,that is,not only simply to promote the creation of knowledge,but more importantly to promote the use and development of knowledge.Because the characteristics of intellectual property rights are different from traditional property rights,if infringements occur,the remedy method for stopping infringement may be applied,which may result in excessive protection of intellectual property rights and even damage social public interests.Accordingly,it is necessary to restrict the cessation of infringement claims in the field of intellectual property.The academic circles expounded the necessity and feasibility of intellectual property restrictions to stop infringement from various angles,and provided a theoretical basis for constructing a restriction system of intellectual property rights to stop infringement.Generally,it can be summarized as follows: the introduction of liability rules to emphasize the general principle of stopping infringement after the infringement of intellectual property rights,and the exception of limiting the stopping of infringement;when limiting the right of stopping infringement,the basic principles are protection of public interest and prohibition of abuse of rights;all parties Benefit comparison is coordinated by means of the principle of proportionality.In addition to theoretical research,existing foreign systems can provide a realistic basis for building a system to stop restrictions on intellectual property rights.The US injunction veto system established the "four elements" detection principle on the basis of equity,and the US judicial practice after the e Bay case has further enriched considerations such as the comparison of the original defendant’s damage and alternative compensation measures.Japan’s differential claim right is similar in nature and function to the restriction system of China’s intellectual property right to stop infringement of the claim right.Although Japan has not directly stipulated the limitation of the differential claim right,it has provided detailed damages in various special laws on intellectual property rights.The amount of compensation and the means of remedy for damages regulate the burden of stopping infringement from another angle.Affected by the "Stop Theory of Stopping Infringement",in most judicial decisions in China,as long as the defendant believes that the infringement has constituted infringement,the infringer will be judged to bear civil liability for stopping infringement.Although more and more people agree that it is necessary to limit the right to stop infringement of the right to claim in the field of intellectual property,there have been a few cases in which it is not judged to stop infringement when it is deemed to constitute infringement,but it is in an awkward position due to lack of legal basis.Despite some legislative and judicial breakthroughs,China still has problems such as poor connection between laws and regulations,unclear conditions for limiting the right to stop infringement of claims,vague public interest concepts that may lead to abuse,and different compensation standards.By studying the current theoretical doctrine,China’s current legal basis,and relevant foreign systems,it is clear that when intellectual property rights are infringed,the principle of stopping infringement is the exception,and the limitation of stopping infringement is the exception.In addition,after determining that the infringement is constituted,you can determine whether it is necessary to stop the infringement by checking whether the interests between the parties are imbalanced,whether the termination of the infringement harms the public interest,and the degree of damage caused to the public interest,the possibility of execution,and the cost;When determining the alternative compensation after the judgment has stopped the infringement,the parties should give priority to the settlement of the agreement.Secondly,they can refer to the license fee to determine the standard of the alternative compensation.