美国专利法不正当行为原则研究
发布时间：2018-10-09 20:42
【摘要】：不正当行为原则，是美国专利法领域自判例发展而来的一项普通法规则，也是美国专利侵权诉讼中最为著名和普遍的抗辩规则。其中不正当行为，是指专利申请人在专利申请过程中对美国专利商标局作出的违反诚实义务的行为。在这一原则下，法院经由被控侵权方举证证明专利持有人在专利申请过程中存在不正当行为，则判决驳回该专利整体的强制效力。自此不正当行为原则确立的第一个判例落定至今，针对不正当行为成立的检测方法和举证标准一直处于发展和演变过程中，并经过大量的历史判例积累，形成了较为复杂的适用规则。 本文在结构上包括五个部分。 第一部分介绍该原则的基本概念和特征，其在专利法体系当中的功能和目标，以及该原则发展的历史判例，以期从整体对该原则在美国专利制度中的地位和作用形成一个初始概念。 第二部分讨论不正当行为原则的理论基础。不正当行为原则的理论渊源来自两个方面，其一，是美国专利法实施细则第一章第56条规定的专利申请程序中申请人的“真实陈述义务”，其二，，是一项普通法原则——“不洁之手”原则。前者解释了不正当行为原则的设立意义以及主要的目标，后者则是在该原则的创设案例中作为其上位原则被援用，并因此成为法院创设并适用该原则的判例法上的依据。 第三部分分析和梳理不正当行为的认定和检测标准的形成、发展和演变。首先是重要性标准，本文梳理了重要性标准两种不同的测试方法，以及对重要性认定的三种相互区别的裁量尺度；其次是意图因素，通过分析几个重要判例中法官对意图因素认定的意见，梳理了意图因素常见的认定标准，以及法官认定该意图因素所普遍采用的分析方法。通过上述梳理和分析，本文向读者展示法院具体如何运用该原则鉴别和治愈不正当行为。 第四部分阐释不正当行为原则适用的诉讼结果及其成文法律依据和判例法渊源，尤其是分析不正当行为所导致的专利整体无执行力的法律意义，并论述为何不正当行为原则将导致专利整体无执行力。此外，该部分还对不正当行为可能引起的其他惩罚性后果进行了介绍。 第五部分的主题是美国范围内围绕不正当行为原则的争论和质疑，以及其对我国的借鉴意义。该部分中首先梳理了美国法院、学者和专利持有人等专利界各方面对该原则的评价和争议，明确该原则目前的争议核心所在，其次，分别从作为一种司法公共政策和作为一种诉讼抗辩策略两种功能角色入手，分析该原则在美国专利历史发展和净化专利申请程序和专利市场秩序方面的功能及其现状，以及其对美国专利诉讼的影响和功能发挥。
[Abstract]:The principle of improper conduct is a common law rule developed from case law in the field of patent law in the United States. It is also the most famous and universal defense rule in patent infringement litigation in the United States. The improper act refers to the act of violating the honest obligation of the patent applicant to the US Patent and Trademark Office in the process of patent application. Under this principle, if the court proves that the patent holder is guilty of improper behavior in the process of patent application, the court will reject the compulsory effect of the patent as a whole. Since the establishment of the first case law on the principle of improper conduct, the detection methods and standard of proof for the establishment of improper acts have been in the process of development and evolution, and have been accumulated through a large number of historical precedents. The formation of more complex applicable rules. The structure of this paper consists of five parts. The first part introduces the basic concepts and characteristics of the principle, its functions and objectives in the patent law system, as well as the historical precedents of the development of the principle. In order to form an initial concept about the position and function of the principle in the patent system of the United States as a whole. The second part discusses the theoretical basis of the principle of improper conduct. The theoretical origin of the principle of improper conduct comes from two aspects. One is the "true statement obligation" of the applicant in the patent application procedure stipulated in Chapter I, Article 56, of the United States Patent Law Enforcement rules, and the other is the true statement obligation of the applicant. Is a common law principle-the "unclean hand" principle. The former explains the significance of the establishment of the principle of improper conduct and its main goal, while the latter is invoked as its superior principle in the case of the creation of the principle, and thus becomes the basis of case law for the court to create and apply the principle. The third part analyzes and combs the formation, development and evolution of the identification and detection standard of improper behavior. The first is the importance standard, this article combs two different test methods of importance standard, and three different kinds of discretion measure to the materiality, the second is the intention factor, By analyzing the opinions of judges on the determination of intention factors in several important cases, this paper combs the common criteria for the determination of intention factors and the analytical methods commonly used by judges to identify the intention factors. Through the above analysis, this paper shows the readers how to use the principle to identify and cure misconduct. The fourth part explains the legal results of the application of the principle of improper conduct and its written legal basis and the origin of case law, especially analyzes the legal significance of the patent as a whole with no execution power caused by improper conduct. And discusses why the principle of improper conduct will lead to the patent as a whole has no enforcement. In addition, this part also introduces other punitive consequences of improper conduct. The theme of the fifth part is the controversy and doubt about the principle of improper conduct in the United States, and its reference significance to our country. In this part, the author firstly combs the evaluation and dispute of the principle in the patent circles, such as American courts, scholars and patent holders, and clarifies the core of the dispute on the principle. Secondly, This paper analyzes the function and current situation of this principle in the development of patent history and the purification of patent application procedure and patent market order in the United States, starting with its two roles as a judicial public policy and a kind of litigation defense strategy. And its impact on the United States patent litigation and function play.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D971.2;DD913
本文编号：2260719
[Abstract]:The principle of improper conduct is a common law rule developed from case law in the field of patent law in the United States. It is also the most famous and universal defense rule in patent infringement litigation in the United States. The improper act refers to the act of violating the honest obligation of the patent applicant to the US Patent and Trademark Office in the process of patent application. Under this principle, if the court proves that the patent holder is guilty of improper behavior in the process of patent application, the court will reject the compulsory effect of the patent as a whole. Since the establishment of the first case law on the principle of improper conduct, the detection methods and standard of proof for the establishment of improper acts have been in the process of development and evolution, and have been accumulated through a large number of historical precedents. The formation of more complex applicable rules. The structure of this paper consists of five parts. The first part introduces the basic concepts and characteristics of the principle, its functions and objectives in the patent law system, as well as the historical precedents of the development of the principle. In order to form an initial concept about the position and function of the principle in the patent system of the United States as a whole. The second part discusses the theoretical basis of the principle of improper conduct. The theoretical origin of the principle of improper conduct comes from two aspects. One is the "true statement obligation" of the applicant in the patent application procedure stipulated in Chapter I, Article 56, of the United States Patent Law Enforcement rules, and the other is the true statement obligation of the applicant. Is a common law principle-the "unclean hand" principle. The former explains the significance of the establishment of the principle of improper conduct and its main goal, while the latter is invoked as its superior principle in the case of the creation of the principle, and thus becomes the basis of case law for the court to create and apply the principle. The third part analyzes and combs the formation, development and evolution of the identification and detection standard of improper behavior. The first is the importance standard, this article combs two different test methods of importance standard, and three different kinds of discretion measure to the materiality, the second is the intention factor, By analyzing the opinions of judges on the determination of intention factors in several important cases, this paper combs the common criteria for the determination of intention factors and the analytical methods commonly used by judges to identify the intention factors. Through the above analysis, this paper shows the readers how to use the principle to identify and cure misconduct. The fourth part explains the legal results of the application of the principle of improper conduct and its written legal basis and the origin of case law, especially analyzes the legal significance of the patent as a whole with no execution power caused by improper conduct. And discusses why the principle of improper conduct will lead to the patent as a whole has no enforcement. In addition, this part also introduces other punitive consequences of improper conduct. The theme of the fifth part is the controversy and doubt about the principle of improper conduct in the United States, and its reference significance to our country. In this part, the author firstly combs the evaluation and dispute of the principle in the patent circles, such as American courts, scholars and patent holders, and clarifies the core of the dispute on the principle. Secondly, This paper analyzes the function and current situation of this principle in the development of patent history and the purification of patent application procedure and patent market order in the United States, starting with its two roles as a judicial public policy and a kind of litigation defense strategy. And its impact on the United States patent litigation and function play.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D971.2;DD913
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本文编号：2260719
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