Research On The Defense Of Legal Source In Intellectual Property Infringement Litigation

There are two important reasons of establishing legal source defense in the field of intellectual property infringement.Firstly,it reduces the legal risk for market operators and promotes economic growth and prosperity by exempting innocent infringers from liability for damages.Secondly,through infringers’ disclosure of sources of products,the infringement problem can be fundamentally solved,so as to encourage innovation.In recent years,intellectual property infringement disputes occurred frequently,and the infringers often cited legal sources to defend in litigation.However,due to the differences in the interpretations of the terms and the lack of identification paths,the courts had different identifications of legal source defense,mainly on the constituent elements of the defense,the identification standards of subjective and objective elements and the disputes over the additional procedures of upstream suppliers.In order to ensure the coordination between legal provisions and judicial application,the constituent elements of legal source defense should be unified.As a legal issue independent of the constitutive elements of infringement,the legal source defense should use the kindness of the infringer and the source of the product as key measurements.The type of intellectual property has nothing to do with the exercise of the right to defense.In determining the identification standard of the defense,we should pay attention to the balance of interests between the parties.It is necessary and feasible to add suppliers as parties in the case during the trial of legal source defense.On the one hand,the addition of suppliers can exempt the innocent infringers from the liability for damages.On the other hand,it can also help the IPR holders to investigate the liability of the real infringer.At the same time,considering judicial efficiency and procedural justice,the court should set corresponding conditions and restrictions.Firstly,the infringer should submit preliminary evidence when applying for an additional defendant.Secondly,the court should respect the IPR holders’ opinions on adding the defendant.Finally,the additional procedure should be limited,and the court cannot repeatedly add the parties to the case,resulting in increased litigation costs.Considering the purpose of the legal source defense,perfecting the legal source defense system is very important to realize judicial justice and maintain judicial authority.Based on the previous studies and the reference of foreign legislation,this article puts forward some suggestions on improving the defense system in intellectual property.On one hand,we need to set up unified rules to determine the legal source defense.Firstly,we need establish the constituent elements of the defense of the legal source based on the existing laws,make it clear that "don’t know" is the subjective element and ‘legal source’ is the objective element,and appropriately expand the scope of the defense subject.Secondly,we need clarify the specific considerations of legal source defense in judicial interpretations and guiding documents,providing effective guidance for judicial practice.Thirdly,we need learn from the legislative paradigm of representative countries and coordinate the definitions of relevant provisions of defense of legitimate sources in the three relevant laws.On the other hand,it mainly improved judicature from the following two aspects.Firstly,we need unify the examination standards of subjective and objective constituent elements and the distribution of burden of proof.We also need distinguish the subject of defense and set the identification standards.Secondly,we need add suppliers as parties into the case when necessary.When the infringer provides preliminary evidence,the court can reasonably add the supplier as a co-defendant.