专利侵权警告函滥用的法律救济
发布时间：2019-06-05 07:52
【摘要】：我国并未对专利侵权警告函制度进行具体规定,最高人民法院在2009年第一次确立了法院受理确认不侵犯专利权诉讼的受理条件,这也是我国法律首次提出专利侵权警告函的概念。专利侵权警告函是一种常见的专利权人维护自己合法专利权的方式,这一救济方式不以法院作出侵权判决为前提,专利权人可以通过侵权警告函达到制止侵权的目的。专利侵权警告函是一种便利、迅捷的解决专利侵权纠纷的途径,通过专利侵权警告函双方当事人可以选择协商解决而不需要经过一个复杂的诉讼过程,相比较专利侵权诉讼漫长复杂的调查取证过程,专利侵权警告函的成本低,为专利权人节省了一大笔诉讼费用,还能起到中断诉讼时效的法律效果,并且对于销售商主观过错具有证明作用。在现实生活中警告函常常被恶意滥用,造成受函人巨大的经济损失。关于滥用专利侵权警告函这种行为的法律性质学界存在两种学说,一是不正当竞争,二是权利滥用说。不正当竞争说表现为行为人为了阻碍竞争对手发展、损害其商业信誉故意发送含有捏造、散布虚伪事实的警告函;权利滥用说表现为专利权人拥有合法专利权,但是故意发送不正当的专利侵权警告函来损害受函人的名誉,不正当的专利侵权警告函主要内容不当、发送方式不当和发送对象不当三种情形。专利侵权警告函滥用的行为严重损害了受函人的商业信誉,给受函人造成了巨大的损失,这种不正当行为应当受到法律的制裁,但是我国法律本身对专利侵权警告函没有作出规定,那么对于滥用警告函行为的法律规制更是缺失的,司法实践中,我们可以从确认不侵犯专利权之诉、不正当竞争之诉和侵犯法人名誉权之诉三个方面对滥用专利侵权警告函的行为进行救济。行为人发送警告函后经被控侵权人书面催告,既不行使诉权也不撤回警告函的情况下被控侵权人有权向法院提起确认不侵犯专利权之诉,请求法院判决并不存在专利侵权事实。但是确认不侵犯专利权诉讼也具有一定的局限性,只能在一定程度上制止警告函的滥用,而并不能有效地弥补受函人所遭受的损失。反不正当竞争之诉的救济方式主要是在发函人通过捏造虚伪事实损害受函人商业信誉时的救济方式,不正当竞争之诉的救济方式要对赔偿数额以及举证责任这两方面进行完善。行为人发送的专利侵权警告函损害了受函人的法人名誉权,被控侵权的法人可以依法提起侵犯法人名誉权以期对自己所受损失进行救济。发函人滥用专利侵权警告函的行为损害法人名誉权应当承担侵权责任,法律责任主要有停止侵权、消除影响、恢复名誉、赔礼道歉和赔偿损失。
[Abstract]:There are no specific provisions on the patent infringement warning letter system in our country. In 2009, the Supreme people's Court established for the first time the acceptance conditions for the court to accept and confirm the non-infringement of patent rights litigation. This is also the first time that the concept of patent infringement warning letter has been put forward by the law of our country. Patent infringement warning letter is a common way for patentees to safeguard their legitimate patent rights, which is not based on the premise that the court makes an infringement judgment, and the patentee can achieve the purpose of stopping infringement through infringement warning letters. Patent infringement warning letter is a convenient and rapid way to solve patent infringement disputes. Through patent infringement warning letter, the parties can choose to negotiate and resolve it without going through a complex litigation process. Compared with the long and complex process of investigation and evidence collection in patent infringement litigation, the cost of patent infringement warning letter is low, which saves a large amount of litigation cost for patentee, and can also have the legal effect of interrupting the limitation of action. And for the seller subjective fault has the proof function. In real life, warning letters are often maliciously abused, resulting in huge economic losses. There are two theories about the legal nature of abuse of patent infringement warning letter, one is unfair competition, the other is the theory of abuse of rights. The theory of unfair competition is manifested in that the actor intentionally sends a warning letter containing fabrications and false facts in order to hinder the development of his competitors and damage his commercial reputation. The abuse of rights is manifested in that the patentee has a legitimate patent right, but intentionally sends an improper warning letter of patent infringement to damage the reputation of the addressee, and the main content of the improper warning letter of patent infringement is improper. There are three situations: improper sending mode and improper sending object. The abuse of patent infringement warning letter has seriously damaged the commercial reputation of the addressee and caused great losses to the addressee. Such improper acts should be punished by law. However, the law of our country itself does not stipulate the warning letter of patent infringement, so the legal regulation of abuse of warning letter is even less. In judicial practice, we can confirm the claim of non-infringement of patent right. The lawsuit of unfair competition and the lawsuit of infringing the reputation right of legal person are used to remedy the abuse of patent infringement warning letter. After sending the warning letter, the alleged infringer has the right to file a lawsuit with the court confirming the non-infringement of the patent right without exercising the right of action or withdrawing the warning letter, and requests the court to decide that there is no fact of patent infringement. However, the confirmation of non-infringement of patent litigation also has some limitations, can only stop the abuse of warning letters to a certain extent, and can not effectively make up for the losses suffered by the addressee. The relief method of anti-unfair competition lawsuit is mainly in the way of relief when the sender damages the commercial reputation of the addressee by fabricating false facts. The relief method of unfair competition lawsuit should perfect the amount of compensation and the burden of proof. The warning letter of patent infringement sent by the perpetrator damages the legal person's reputation right of the addressee, and the legal person accused of infringing the legal person may bring forward the infringement of the legal person's reputation right in accordance with the law in order to remedy the loss he has suffered. The sender should bear tort liability for abusing the warning letter of patent infringement to damage the reputation right of legal person. The main legal liability is to stop the infringement, eliminate the influence, restore the reputation, apologize and compensate for the loss.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
本文编号：2493364
[Abstract]:There are no specific provisions on the patent infringement warning letter system in our country. In 2009, the Supreme people's Court established for the first time the acceptance conditions for the court to accept and confirm the non-infringement of patent rights litigation. This is also the first time that the concept of patent infringement warning letter has been put forward by the law of our country. Patent infringement warning letter is a common way for patentees to safeguard their legitimate patent rights, which is not based on the premise that the court makes an infringement judgment, and the patentee can achieve the purpose of stopping infringement through infringement warning letters. Patent infringement warning letter is a convenient and rapid way to solve patent infringement disputes. Through patent infringement warning letter, the parties can choose to negotiate and resolve it without going through a complex litigation process. Compared with the long and complex process of investigation and evidence collection in patent infringement litigation, the cost of patent infringement warning letter is low, which saves a large amount of litigation cost for patentee, and can also have the legal effect of interrupting the limitation of action. And for the seller subjective fault has the proof function. In real life, warning letters are often maliciously abused, resulting in huge economic losses. There are two theories about the legal nature of abuse of patent infringement warning letter, one is unfair competition, the other is the theory of abuse of rights. The theory of unfair competition is manifested in that the actor intentionally sends a warning letter containing fabrications and false facts in order to hinder the development of his competitors and damage his commercial reputation. The abuse of rights is manifested in that the patentee has a legitimate patent right, but intentionally sends an improper warning letter of patent infringement to damage the reputation of the addressee, and the main content of the improper warning letter of patent infringement is improper. There are three situations: improper sending mode and improper sending object. The abuse of patent infringement warning letter has seriously damaged the commercial reputation of the addressee and caused great losses to the addressee. Such improper acts should be punished by law. However, the law of our country itself does not stipulate the warning letter of patent infringement, so the legal regulation of abuse of warning letter is even less. In judicial practice, we can confirm the claim of non-infringement of patent right. The lawsuit of unfair competition and the lawsuit of infringing the reputation right of legal person are used to remedy the abuse of patent infringement warning letter. After sending the warning letter, the alleged infringer has the right to file a lawsuit with the court confirming the non-infringement of the patent right without exercising the right of action or withdrawing the warning letter, and requests the court to decide that there is no fact of patent infringement. However, the confirmation of non-infringement of patent litigation also has some limitations, can only stop the abuse of warning letters to a certain extent, and can not effectively make up for the losses suffered by the addressee. The relief method of anti-unfair competition lawsuit is mainly in the way of relief when the sender damages the commercial reputation of the addressee by fabricating false facts. The relief method of unfair competition lawsuit should perfect the amount of compensation and the burden of proof. The warning letter of patent infringement sent by the perpetrator damages the legal person's reputation right of the addressee, and the legal person accused of infringing the legal person may bring forward the infringement of the legal person's reputation right in accordance with the law in order to remedy the loss he has suffered. The sender should bear tort liability for abusing the warning letter of patent infringement to damage the reputation right of legal person. The main legal liability is to stop the infringement, eliminate the influence, restore the reputation, apologize and compensate for the loss.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
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