標(biāo)準(zhǔn)必要專利侵權(quán)訴訟中停止侵權(quán)責(zé)任探究
發(fā)布時(shí)間：2019-06-17 09:07
【摘要】：三流企業(yè)賣苦力,二流企業(yè)賣產(chǎn)品,一流企業(yè)賣技術(shù),超一流企業(yè)賣標(biāo)準(zhǔn)。這句話貼切的反映出商業(yè)世界里金字塔的各層級架構(gòu)。顯然,成為標(biāo)準(zhǔn)的制定者,使得他人不可避免地實(shí)施其專利是每一個(gè)企業(yè)的終極追求。隨著專利標(biāo)準(zhǔn)化進(jìn)程的推進(jìn),由此產(chǎn)生的沖突與挑戰(zhàn)是理論與實(shí)務(wù)界都不得不面對的新命題。標(biāo)準(zhǔn)必要專利歸根到底還是一種專利權(quán),專利權(quán)作為一種排他權(quán),其核心就在于沒有專利權(quán)人許可任何人不得制造、銷售、許諾銷售、進(jìn)口、使用專利產(chǎn)品,停止侵權(quán)是排他權(quán)的體現(xiàn)形式與重要保障。另一方面,與普通專利不同,標(biāo)準(zhǔn)的公共物品屬性要求專利技術(shù)在行業(yè)內(nèi)廣泛地推廣運(yùn)用。由此,標(biāo)準(zhǔn)必要專利中停止侵權(quán)責(zé)任承擔(dān)應(yīng)當(dāng)受到更為嚴(yán)格地限制早已成為共識。我國司法常態(tài)中專利侵權(quán)糾紛停止侵權(quán)責(zé)任承擔(dān)當(dāng)然化做法顯然與這一認(rèn)知存在差距。對此,法院在面對標(biāo)準(zhǔn)必要專利侵權(quán)糾紛時(shí)有意作出突破卻似乎走上了另一個(gè)極端。標(biāo)準(zhǔn)必要專利對于停止侵權(quán)責(zé)任承擔(dān)的限制是否嚴(yán)厲到排除其在標(biāo)準(zhǔn)必要專利中的適用?換言之,標(biāo)準(zhǔn)必要專利中侵權(quán)人是否應(yīng)該承擔(dān)停止侵權(quán)責(zé)任?如果應(yīng)當(dāng)承擔(dān),其承擔(dān)的條件是什么?這都是本文重點(diǎn)討論并要厘清的問題。由于我國的停止侵權(quán)責(zé)任與美國的永久禁令救濟(jì)之間存在很強(qiáng)的可比性,研究美國的經(jīng)驗(yàn)有助于解答上述問題�！肮�、合理、無歧視”的許可原則(下文稱FRAND原則)是標(biāo)準(zhǔn)化組織專門針對標(biāo)準(zhǔn)必要專利提出的許可原則,旨在平衡各方的利益,是追求實(shí)質(zhì)平等的產(chǎn)物。這一制度的影響深遠(yuǎn),接受度甚廣,但是其內(nèi)涵不明,缺乏具有可操作性的詳細(xì)解釋,對于停止侵權(quán)責(zé)任承擔(dān)缺乏明確的指引。就FRAND原則的宗旨與內(nèi)涵來看,禁令救濟(jì)并不必然違反FRAND原則,后者僅會對禁令救濟(jì)的適用產(chǎn)生限制作用,是否頒發(fā)禁令應(yīng)當(dāng)留給司法機(jī)關(guān)運(yùn)用自由裁量權(quán)進(jìn)行個(gè)案判斷。專利權(quán)人的禁令請求既可能是專利劫持情境下攫取超出FRAND承諾的利益,還可能是尋求對符合FRAND承諾的利益的保護(hù)。前者不應(yīng)當(dāng)受到法律的保護(hù),后者卻應(yīng)當(dāng)受到法律的保護(hù)。出于促進(jìn)標(biāo)準(zhǔn)技術(shù)推廣,防止專利劫持現(xiàn)象發(fā)生的考量,不管是美國法院、貿(mào)易委員會還是美國司法部都認(rèn)為受到FRAND承諾約束的標(biāo)準(zhǔn)必要專利中永久禁令救濟(jì)的簽發(fā)相對于普通專利而言應(yīng)該更為嚴(yán)格。盡管如此,標(biāo)準(zhǔn)必要專利中禁令之簽發(fā)并沒有突破一般規(guī)則的約束。337禁令以337條款為判斷基礎(chǔ);永久禁令救濟(jì)的適用以e Bay案確立的“四要件檢驗(yàn)標(biāo)準(zhǔn)”為基礎(chǔ),考慮FRAND承諾約束下的標(biāo)準(zhǔn)必要專利的介入對于“不可彌補(bǔ)之損害”“公共利益”形成的沖擊。對于標(biāo)準(zhǔn)必要專利中“公共利益”的考量可具象化為對非善意被許可人的判斷。就非善意被許可人的認(rèn)定標(biāo)準(zhǔn),雖然仍存在爭論,但美國還是在實(shí)踐中達(dá)成了一些共識,可供我國借鑒。具體而言,明確下列情形可責(zé)令侵權(quán)人承擔(dān)停止侵權(quán)責(zé)任:潛在被許可人拒絕獲得許可;拒絕接受已經(jīng)被認(rèn)定為符合FRAND承諾的許可條件;拒不接受有管轄權(quán)的法院或雙方同意的仲裁機(jī)構(gòu)做出的裁判結(jié)果;在談判中堅(jiān)持主張明顯超出FRAND原則的許可條件實(shí)際上拒絕給予專利權(quán)人足夠的回報(bào)。另一方面,明確潛在被許可人對專利有效性、必要性與侵權(quán)與否的挑戰(zhàn),不能被視為是對符合FRAND承諾的許可條件的拒絕,而面臨停止侵權(quán)責(zé)任承擔(dān)的風(fēng)險(xiǎn)。潛在被許可人就專利權(quán)人提出的許可條件是否滿足FRAND承諾存在爭議訴諸法庭時(shí),在司法裁判沒有作出之前標(biāo)準(zhǔn)必要專利權(quán)人不得提起停止侵權(quán)之訴請。
[Abstract]:The three-flow enterprise sells the product, the second-stream enterprise sells the product, the first-class enterprise sells the technology, the super-class enterprise sells the standard. This is an appropriate reflection of the various hierarchical structures of the pyramid in the business world. It is clear that becoming a standard maker makes it inevitable for others to implement their patents as the ultimate pursuit of every enterprise. With the advancement of the process of the standardization of the patent, the conflict and the challenge are the new proposition that both the theory and the practical world have to face. In the final analysis, the standard necessary patent is a patent right, and the patent right is a exclusive right. The core of the patent is that no one is allowed to manufacture, sell, promise to sell, import and use the patented product without the patentee's permission, and to stop the infringement is the form and important guarantee of exclusive right. On the other hand, in contrast to the common patent, the standard public goods attribute requires the patent technology to be widely used in the industry. In this connection, that obligation to stop the torts in the standard necessary patent should be more strictly limited and it has become a consensus. In our country's judicial normal, patent infringement disputes stop the liability of the infringement, and the course of course is obviously different from this cognition. In response, that court's intention to make a breakthrough in the face of the standard patent infringement dispute seem to be on the other extreme. Is the limitation of the standard necessary patent for stopping the liability of the infringement be severe enough to exclude its application in the standard necessary patent? In other words, should the infringer in the standard patent should bear the responsibility to stop the infringement? If it is to be assumed, what is the condition of it? This is the focus of this paper and is to be clarified. The study of the experience of the United States has helped to solve the above-mentioned problems because of the strong comparability between the cessation of torts and the permanent injunctions in the United States. The "Fair, reasonable, non-discriminatory" 's licensing principle (hereinafter referred to as the FRND principle) is the principle of the standardization of the Organization's licensing principles specifically for standard essential patents, aimed at balancing the interests of the parties and pursuing the product of substantial equality. The system has a far-reaching impact and a wide acceptance, but its connotation is unclear, the lack of detailed explanation with the operability, and the lack of clear guidance on the responsibility for stopping the torts. On the basis of the purpose and connotation of the FRND principle, the injunctive relief does not necessarily violate the principle of FRAND, which only limits the application of the injunctive relief, and whether the ban should be left to the judicial authorities to use the discretionary power to judge the case. The patentee's request for injunctions may be either a patent-hijack situation or an interest in excess of the FRD commitment, and may also seek to protect the interests of the FRD commitment. The former should not be protected by law, but the latter should be protected by law. In the light of the consideration of the promotion of standard technology extension and the prevention of the occurrence of patent hijackings, the issue of permanent injunction in the standard necessary patents that the United States Court, the Trade Commission or the United States Department of Justice considers to be bound by the FRAD commitment should be more stringent than in the case of the general patent. Nevertheless, the issuance of the ban in the standard necessary patent does not break through the constraints of the general rule. The prohibition is based on the 337 terms; the application of the permanent injunction is based on the "four-element inspection standard" established in the e Bay case, The consideration of the "irreparable damage" 's necessary patent under the framework of the FRD commitment to the "The impact formed. in that standard necessary patent," of the "public interest" of the public interest may be considered as a judgment of the non-goodwill licensee. However, the United States has reached a number of consensus in practice for the reference of our country. In particular, it is clear that the infringer may be ordered to bear the responsibility to stop the torts: the potential licensee refuses to obtain the permit, and refuses to accept the conditions of the permit that have been identified as being in compliance with the FRND commitments; Refusal to accept the results of a decision made by a court of competent jurisdiction or by an arbitration body agreed by the parties; in the course of the negotiations, it is in fact that the conditions of the permit that are manifestly outside the FRND principle are refused to give the patentee a sufficient return on the other hand, and on the other hand, the validity of the patent to the patentee is clearly defined, The necessity and the challenge of the infringement cannot be considered as a rejection of the conditions of the licence in accordance with the FRD commitment, and the risk of the cessation of the liability of the torts. The potential licensee, in respect of whether the licensing conditions proposed by the patentee satisfy the FRND's commitment to the existence of a dispute to the Tribunal, Before the judicial decision is made, the patentee shall not bring an action to stop the infringement.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D923.42
本文編號：2500878
[Abstract]:The three-flow enterprise sells the product, the second-stream enterprise sells the product, the first-class enterprise sells the technology, the super-class enterprise sells the standard. This is an appropriate reflection of the various hierarchical structures of the pyramid in the business world. It is clear that becoming a standard maker makes it inevitable for others to implement their patents as the ultimate pursuit of every enterprise. With the advancement of the process of the standardization of the patent, the conflict and the challenge are the new proposition that both the theory and the practical world have to face. In the final analysis, the standard necessary patent is a patent right, and the patent right is a exclusive right. The core of the patent is that no one is allowed to manufacture, sell, promise to sell, import and use the patented product without the patentee's permission, and to stop the infringement is the form and important guarantee of exclusive right. On the other hand, in contrast to the common patent, the standard public goods attribute requires the patent technology to be widely used in the industry. In this connection, that obligation to stop the torts in the standard necessary patent should be more strictly limited and it has become a consensus. In our country's judicial normal, patent infringement disputes stop the liability of the infringement, and the course of course is obviously different from this cognition. In response, that court's intention to make a breakthrough in the face of the standard patent infringement dispute seem to be on the other extreme. Is the limitation of the standard necessary patent for stopping the liability of the infringement be severe enough to exclude its application in the standard necessary patent? In other words, should the infringer in the standard patent should bear the responsibility to stop the infringement? If it is to be assumed, what is the condition of it? This is the focus of this paper and is to be clarified. The study of the experience of the United States has helped to solve the above-mentioned problems because of the strong comparability between the cessation of torts and the permanent injunctions in the United States. The "Fair, reasonable, non-discriminatory" 's licensing principle (hereinafter referred to as the FRND principle) is the principle of the standardization of the Organization's licensing principles specifically for standard essential patents, aimed at balancing the interests of the parties and pursuing the product of substantial equality. The system has a far-reaching impact and a wide acceptance, but its connotation is unclear, the lack of detailed explanation with the operability, and the lack of clear guidance on the responsibility for stopping the torts. On the basis of the purpose and connotation of the FRND principle, the injunctive relief does not necessarily violate the principle of FRAND, which only limits the application of the injunctive relief, and whether the ban should be left to the judicial authorities to use the discretionary power to judge the case. The patentee's request for injunctions may be either a patent-hijack situation or an interest in excess of the FRD commitment, and may also seek to protect the interests of the FRD commitment. The former should not be protected by law, but the latter should be protected by law. In the light of the consideration of the promotion of standard technology extension and the prevention of the occurrence of patent hijackings, the issue of permanent injunction in the standard necessary patents that the United States Court, the Trade Commission or the United States Department of Justice considers to be bound by the FRAD commitment should be more stringent than in the case of the general patent. Nevertheless, the issuance of the ban in the standard necessary patent does not break through the constraints of the general rule. The prohibition is based on the 337 terms; the application of the permanent injunction is based on the "four-element inspection standard" established in the e Bay case, The consideration of the "irreparable damage" 's necessary patent under the framework of the FRD commitment to the "The impact formed. in that standard necessary patent," of the "public interest" of the public interest may be considered as a judgment of the non-goodwill licensee. However, the United States has reached a number of consensus in practice for the reference of our country. In particular, it is clear that the infringer may be ordered to bear the responsibility to stop the torts: the potential licensee refuses to obtain the permit, and refuses to accept the conditions of the permit that have been identified as being in compliance with the FRND commitments; Refusal to accept the results of a decision made by a court of competent jurisdiction or by an arbitration body agreed by the parties; in the course of the negotiations, it is in fact that the conditions of the permit that are manifestly outside the FRND principle are refused to give the patentee a sufficient return on the other hand, and on the other hand, the validity of the patent to the patentee is clearly defined, The necessity and the challenge of the infringement cannot be considered as a rejection of the conditions of the licence in accordance with the FRD commitment, and the risk of the cessation of the liability of the torts. The potential licensee, in respect of whether the licensing conditions proposed by the patentee satisfy the FRND's commitment to the existence of a dispute to the Tribunal, Before the judicial decision is made, the patentee shall not bring an action to stop the infringement.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D923.42
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 葉若思;祝建軍;陳文全;;標(biāo)準(zhǔn)必要專利使用費(fèi)糾紛中FRAND規(guī)則的司法適用 評華為公司訴美國IDC公司標(biāo)準(zhǔn)必要專利使用費(fèi)糾紛案[J];電子知識產(chǎn)權(quán);2013年04期
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