KCI등재
중국 특허권의 침해와 구제
저자
발행기관
학술지명
권호사항
발행연도
2004
작성언어
Korean
등재정보
KCI등재
자료형태
학술저널
수록면
95-128(34쪽)
제공처
1. Introduction
Patent right is a right that has the natures of monopolization and exclusiveness. However, although it is difficult to firmly decide the scope of protection and potentiality of infringement since the inventive creations that are objects of protection of the patent right are intangible properties
and creative rights, the patent right system has to be operated toward the objectives of encouraging effective competition and restrain unjust competition in terms of the purpose of the protection of intellectual property right, technology power of the nation, industrial policy, etc.
2. Infringement of Patent Right Manufacturing, using, selling and importing of patent product or using the patent methodfor the purpose of business without obtaining permission of patentee is referred to as direct infringement. Direct infringement includes the Infringement in Identical Sphere caused by using all constituent element features, as they are, of concerned patent, and the Infringement in Equal Sphere caused by using core features, as they are, of the invention. Among these, most problems arise from the infringement in equal sphere. The type of infringement contributing to other person's infringement of patent right or inducing the infringement
is referred to as indirect infringement. Although this indirect infringement is aimed at the protection of patent right defining the acts taken at the step preceding infringement act as an infringement act, it has to be carefully applied because unjust restriction to the business is worried.
In case of Use Invention that obtain the patent adding new technical factor on the basis of patented fundamental invention and Conflicting Invention that two inventions conflict each other because dual patents are granted for identical inventions, these inventions are deemed to be
effective unless the procedures for legal decision for invalidity are undergone. When there is improvement effect by adding or eliminating constituent element features of patent, it will not constitute infringement.
But, when its effect is mostly the same, it will not only constitute the infringement but also the same in case of coarse use. In case when the invention is diverted to other close technical field, diversion to other close technical field constitutes the infringement. In chemical field, general compounding method is not recognized as patent. But, when the material generated by certain compounding method has remarkable operating effect, such compounding method is recognized as a patent.
There is a system called Reasons for Plea in which case the infringement is not constituted even if there was a conduct of infringement of patent right in external view when the reasons for
restriction on exercise of patent right or the reasons for faking unlawfulness exist. As general reasons for plea, Article 63 of Patent Law stipulates; the case of use or sales after initial sales of patentee, the case of holding prior use right by the person who already manufactured same
product prior to the date of application for patent, the case of merely passing the territorial air or territory of China, the use for professional scientific research or experiment, prescription conduct under Pharmacists Law. Further, there are plea against the abuse of right in practical work,
plea for abatement, plea for invalidity of patent, plea for the use of publicly known and publicly used technology.
3. Claim for Prohibition of Infringement
The patentee who hold effective patent right and implementation right and interested parties may claim the prohibition or prevention of infringement of patent right as a claim right under property right against the person who infringed or is worried to infringe the patent right by using the patent right for the purpose of business operation.
The prohibition of infringement may be claimed by filing lawsuit to Chinese Peoples Court of jurisdiction of the address of defendant or the location of business place where infringement conduct took place or discontinuance of infringement may be claimed to the Office of Patent
Affairs Administration.
The claim for discontinuance of infringement is present performance lawsuit securing discontinuance of present infringement conduct, and the claim for prevention of infringement is future performance lawsuit securing the prevention of future infringement. In case when the claim
for the prohibition of infringement is accepted by the court, infringing party is prohibited not only from direct infringement but also from indirect infringement. When the infringing party does not comply with this prohibition, proxy execution may take place, and the infringing party is subject to criminal punishment. Office of Patent Affairs Administration can merely request compulsory execution to the court.
Regarding the method of disposition in case when there are any goods generated out of infringement conduct or any facilities provided in infringement conduct, Chinese Patent Law stipulates nothing thereon differently from our Patent Law. However, destruction or removal of the
goods generated by infringement or provided facilities may be claimed in accordance with Article 118 and Paragraph 1 of Article 134 of General Provisions of the Civil Law, and the actions necessary for the prevention of infringement may be claimed.
Provisional disposition prior to the lawsuit on the merits is also necessary in case of infringement of patent right. In case when the right to be preserved exists and its preservation is necessary, preliminary disposition for the prohibition of disposition is possible also under Article
97 of Chinese Civil Procedure Law. For the right eligible to be preserved, basic facts must be evident and the rights and obligations must be definite, and the claimant must clearly explain thatthe respondent bears the obligations for performance, return or compensation. The claimant
also must clearly explain the necessity of preservation that provisional execution is necessary for the reasons of urgency of situation.
4. Compensation for Damages
Since the patent right is intangible and abstract right, it is difficult to prove the fact of infringement and amount of damages. Therefore, each country either provides the rules for estimating the amount of damages or grants certain discretionary authority to the court. Since Chinese
Patent Law, like in our Patent Law, does not provide the rules for estimating the faults, the claimant must prove it. However, for proving of infringement fact, Paragraph 2 of Article 57 of Chinese Patent Law provides the transfer of responsibility to prove. In case of patent right,
mental and positive damages are neglected by its peculiarity and only passive damages, i.e. the loss of profits that the patentee could have gained, are handled.
For the lost profit by the infringement of patent right, the amount of compensation can be decided by calculating the profit that could have been gained if the infringement of patent did not take place. However, since it is almost impossible to practically prove it, our Patent Law provides the rules to calculate by the formula of "sales quantity of infringed product x unit profit of right holder", and this formula may also be able to apply to the case of China.
As there are problems in calculating the damages by the infringement of patent right that is an intangible right, there are methods of deciding such damages by; providing the rules of estimating the profits gained by infringing party as the amount of damages in order to make it easy to prove the damages, or deciding the amount of damages based on the amount of royalty for patent right, have the judge of the court recognize substantial amount of damages according to entire tenor of oral proceedings and the result of evidence investigation.
In case of China, the methods of either claiming the compensation for damages by filing lawsuit to the court or requesting for conciliation to the Office of Patent Affairs Administration are available. However, the conciliation has no legal binding force since it is a system of persuading
agreement between concerned parties.
5. Right for Claiming the Recovery of Credit
Problem area exist concerning whether or not the remedy by other methods than compensation for damages are available as the measures of remedy for the damages caused by infringement conduct. Chinese Patent Law stipulates no special provisions in this regard. However, an apology in the type of civil responsibility may be utilized in accordance with Subparagraph 10 of Paragraph 1 of Article 134 of the General Provisions of Civil Law.6. Criminal Punishment
Since the patent right is an issue related with private right of individual person, the attitude of each country is not uniformly settled as to whether or not to apply criminal punishment in case such right is infringed. In case of China, however, Article 218 of Criminal Law provides the crime for counterfeiting the patent and Article 59 of Patent Law provides the crime for production and selling of patent product.
서지정보 내보내기(Export)
닫기소장기관 정보
닫기권호소장정보
닫기오류접수
닫기오류 접수 확인
닫기음성서비스 신청
닫기음성서비스 신청 확인
닫기이용약관
닫기학술연구정보서비스 이용약관 (2017년 1월 1일 ~ 현재 적용)
학술연구정보서비스(이하 RISS)는 정보주체의 자유와 권리 보호를 위해 「개인정보 보호법」 및 관계 법령이 정한 바를 준수하여, 적법하게 개인정보를 처리하고 안전하게 관리하고 있습니다. 이에 「개인정보 보호법」 제30조에 따라 정보주체에게 개인정보 처리에 관한 절차 및 기준을 안내하고, 이와 관련한 고충을 신속하고 원활하게 처리할 수 있도록 하기 위하여 다음과 같이 개인정보 처리방침을 수립·공개합니다.
주요 개인정보 처리 표시(라벨링)
목 차
3년
또는 회원탈퇴시까지5년
(「전자상거래 등에서의 소비자보호에 관한3년
(「전자상거래 등에서의 소비자보호에 관한2년
이상(개인정보보호위원회 : 개인정보의 안전성 확보조치 기준)개인정보파일의 명칭 | 운영근거 / 처리목적 | 개인정보파일에 기록되는 개인정보의 항목 | 보유기간 | |
---|---|---|---|---|
학술연구정보서비스 이용자 가입정보 파일 | 한국교육학술정보원법 | 필수 | ID, 비밀번호, 성명, 생년월일, 신분(직업구분), 이메일, 소속분야, 웹진메일 수신동의 여부 | 3년 또는 탈퇴시 |
선택 | 소속기관명, 소속도서관명, 학과/부서명, 학번/직원번호, 휴대전화, 주소 |
구분 | 담당자 | 연락처 |
---|---|---|
KERIS 개인정보 보호책임자 | 정보보호본부 김태우 | - 이메일 : lsy@keris.or.kr - 전화번호 : 053-714-0439 - 팩스번호 : 053-714-0195 |
KERIS 개인정보 보호담당자 | 개인정보보호부 이상엽 | |
RISS 개인정보 보호책임자 | 대학학술본부 장금연 | - 이메일 : giltizen@keris.or.kr - 전화번호 : 053-714-0149 - 팩스번호 : 053-714-0194 |
RISS 개인정보 보호담당자 | 학술진흥부 길원진 |
자동로그아웃 안내
닫기인증오류 안내
닫기귀하께서는 휴면계정 전환 후 1년동안 회원정보 수집 및 이용에 대한
재동의를 하지 않으신 관계로 개인정보가 삭제되었습니다.
(참조 : RISS 이용약관 및 개인정보처리방침)
신규회원으로 가입하여 이용 부탁 드리며, 추가 문의는 고객센터로 연락 바랍니다.
- 기존 아이디 재사용 불가
휴면계정 안내
RISS는 [표준개인정보 보호지침]에 따라 2년을 주기로 개인정보 수집·이용에 관하여 (재)동의를 받고 있으며, (재)동의를 하지 않을 경우, 휴면계정으로 전환됩니다.
(※ 휴면계정은 원문이용 및 복사/대출 서비스를 이용할 수 없습니다.)
휴면계정으로 전환된 후 1년간 회원정보 수집·이용에 대한 재동의를 하지 않을 경우, RISS에서 자동탈퇴 및 개인정보가 삭제처리 됩니다.
고객센터 1599-3122
ARS번호+1번(회원가입 및 정보수정)