论贴牌生产中专利侵权责任主体的认定
发布时间：2019-04-27 16:25
【摘要】：由于专利法及相关司法解释对于定作人委托承揽人贴牌生产的被诉侵权产品,如何认定该产品的制造者的问题未作出明文规定,以致司法实践对专利法意义上的“制造”理解千差万别,使专利权人和社会公众均无所适从。本文共分五部分。第一部分是对贴牌生产合同的性质以及法律特征予以论述。OEM、ODM是贴牌生产合同的典型表现形式,但其缺乏固定的模式,并且不断演变,但贴牌生产合同的性质仍为承揽合同,其与买卖合同与商标实施许可合同有着根本性的区别。第二部分就司法实践对贴牌生产的专利产品制造者认定的不同作法进行评述。不同法院对此有不同认定,有认定贴牌生产的定作人是专利产品的制造者的;也有认定专利产品上识别性标识的所有者是专利产品的制造者;有认定实施的是共同制造行为,构成共同侵权的;更有采纳一般过错责任理论,认定专利产品的实际生产者或对专利产品的制造起到教唆、帮助作用的为专利产品的制造者。本章对上述观点进行了详细的介绍与深入评论。第三部分论述了贴牌生产中承揽人专利侵权责任的认定。承揽人专利侵权责任认定与普通的专利侵权责任的认定模式一致。专利侵权责任的归责原则为严格化的过错推定原则。根据普通专利侵权的构成要件和认定原则认定承揽人是否构成专利侵权。第四部分是重点,论述了贴牌生产中定作人专利侵权责任的认定。通过对特殊侵权行为领域内典型定作人侵权责任规范的体系化解释,以及从有利于受害人救济理论、利益平衡理论、风险控制理论出发,认为定作人作为合同法上承揽合同中的制造者,应承担擅自制造专利产品的侵权责任。第五部分论述了定作人与承揽人之间的连带责任与分别责任问题。如定作人与承揽人具有共同的意思联络或具有教唆、帮助情形,则由其承担连带责任。
[Abstract]:Because the patent law and the relevant judicial interpretation do not make explicit provisions on the question of how to identify the manufacturer of the product under suit which the hiree is entrusted by the hirer to produce under the license of the hirer, As a result, judicial practice has a very different understanding of "manufacture" in the sense of patent law, which makes patentees and the public at a loss. This paper is divided into five parts. The first part is to discuss the nature and legal characteristics of the label production contract. OEM, ODM is a typical manifestation of the label production contract, but it lacks a fixed model and continues to evolve. However, the nature of licensed production contract is still contract, and there is a fundamental difference between the contract of sale and the license contract of trademark implementation. In the second part, the author comments on the different practices of the manufacturer of patented products in the judicial practice. Different courts have found that the manufacturer of patent product, the owner of identifiable mark on patent product is the manufacturer of patent product, and the owner of identification mark on patent product is the manufacturer of patent product, and the manufacturer of patent product is found to be the manufacturer of patent product, and the owner of identification mark is the manufacturer of patent product. It also adopts the general fault liability theory to identify the actual producer of the patent product or the manufacturer of the patent product which plays the role of instigating and aiding the manufacture of the patent product. The author also adopts the general fault liability theory to identify the actual producer of the patent product or the manufacturer of the patent product which plays the role of abetting and aiding. This chapter has carried on the detailed introduction and the in-depth comment to the above views. The third part discusses the ascertainment of the hirer's patent tort liability in the production of sticker. The cognizance of the hiree's patent tort liability is consistent with that of the common patent infringement liability. The imputation principle of patent tort liability is strict fault presumption principle. Determine whether the hirer constitutes patent infringement or not according to the constituent elements and identification principles of common patent infringement. The fourth part focuses on the identification of patent infringement liability of the customizer in the production of sticker. Through the systematic interpretation of the norms of tort liability of typical customizers in the field of special tort, and starting from the theory of relief for victims, the theory of balance of interests, the theory of risk control, The author thinks that as the manufacturer of contract, the contractor should bear the tort liability of manufacturing patent products without authorization. The fifth part discusses the joint and several liability and the separate liability between the hirer and the hirer. If the hirer and the hiree have a joint intention contact or abet, the hirer shall be jointly and severally liable.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.42
本文编号：2467128
[Abstract]:Because the patent law and the relevant judicial interpretation do not make explicit provisions on the question of how to identify the manufacturer of the product under suit which the hiree is entrusted by the hirer to produce under the license of the hirer, As a result, judicial practice has a very different understanding of "manufacture" in the sense of patent law, which makes patentees and the public at a loss. This paper is divided into five parts. The first part is to discuss the nature and legal characteristics of the label production contract. OEM, ODM is a typical manifestation of the label production contract, but it lacks a fixed model and continues to evolve. However, the nature of licensed production contract is still contract, and there is a fundamental difference between the contract of sale and the license contract of trademark implementation. In the second part, the author comments on the different practices of the manufacturer of patented products in the judicial practice. Different courts have found that the manufacturer of patent product, the owner of identifiable mark on patent product is the manufacturer of patent product, and the owner of identification mark on patent product is the manufacturer of patent product, and the manufacturer of patent product is found to be the manufacturer of patent product, and the owner of identification mark is the manufacturer of patent product. It also adopts the general fault liability theory to identify the actual producer of the patent product or the manufacturer of the patent product which plays the role of instigating and aiding the manufacture of the patent product. The author also adopts the general fault liability theory to identify the actual producer of the patent product or the manufacturer of the patent product which plays the role of abetting and aiding. This chapter has carried on the detailed introduction and the in-depth comment to the above views. The third part discusses the ascertainment of the hirer's patent tort liability in the production of sticker. The cognizance of the hiree's patent tort liability is consistent with that of the common patent infringement liability. The imputation principle of patent tort liability is strict fault presumption principle. Determine whether the hirer constitutes patent infringement or not according to the constituent elements and identification principles of common patent infringement. The fourth part focuses on the identification of patent infringement liability of the customizer in the production of sticker. Through the systematic interpretation of the norms of tort liability of typical customizers in the field of special tort, and starting from the theory of relief for victims, the theory of balance of interests, the theory of risk control, The author thinks that as the manufacturer of contract, the contractor should bear the tort liability of manufacturing patent products without authorization. The fifth part discusses the joint and several liability and the separate liability between the hirer and the hirer. If the hirer and the hiree have a joint intention contact or abet, the hirer shall be jointly and severally liable.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.42
【参考文献】
相关期刊论文 前1条
1 张斌;论现代立法中的利益平衡机制[J];清华大学学报(哲学社会科学版);2005年02期
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