标准必要专利侵权诉讼中停止侵权责任探究
发布时间：2019-06-17 09:07
【摘要】：三流企业卖苦力,二流企业卖产品,一流企业卖技术,超一流企业卖标准。这句话贴切的反映出商业世界里金字塔的各层级架构。显然,成为标准的制定者,使得他人不可避免地实施其专利是每一个企业的终极追求。随着专利标准化进程的推进,由此产生的冲突与挑战是理论与实务界都不得不面对的新命题。标准必要专利归根到底还是一种专利权,专利权作为一种排他权,其核心就在于没有专利权人许可任何人不得制造、销售、许诺销售、进口、使用专利产品,停止侵权是排他权的体现形式与重要保障。另一方面,与普通专利不同,标准的公共物品属性要求专利技术在行业内广泛地推广运用。由此,标准必要专利中停止侵权责任承担应当受到更为严格地限制早已成为共识。我国司法常态中专利侵权纠纷停止侵权责任承担当然化做法显然与这一认知存在差距。对此,法院在面对标准必要专利侵权纠纷时有意作出突破却似乎走上了另一个极端。标准必要专利对于停止侵权责任承担的限制是否严厉到排除其在标准必要专利中的适用?换言之,标准必要专利中侵权人是否应该承担停止侵权责任?如果应当承担,其承担的条件是什么?这都是本文重点讨论并要厘清的问题。由于我国的停止侵权责任与美国的永久禁令救济之间存在很强的可比性,研究美国的经验有助于解答上述问题。“公平、合理、无歧视”的许可原则(下文称FRAND原则)是标准化组织专门针对标准必要专利提出的许可原则,旨在平衡各方的利益,是追求实质平等的产物。这一制度的影响深远,接受度甚广,但是其内涵不明,缺乏具有可操作性的详细解释,对于停止侵权责任承担缺乏明确的指引。就FRAND原则的宗旨与内涵来看,禁令救济并不必然违反FRAND原则,后者仅会对禁令救济的适用产生限制作用,是否颁发禁令应当留给司法机关运用自由裁量权进行个案判断。专利权人的禁令请求既可能是专利劫持情境下攫取超出FRAND承诺的利益,还可能是寻求对符合FRAND承诺的利益的保护。前者不应当受到法律的保护,后者却应当受到法律的保护。出于促进标准技术推广,防止专利劫持现象发生的考量,不管是美国法院、贸易委员会还是美国司法部都认为受到FRAND承诺约束的标准必要专利中永久禁令救济的签发相对于普通专利而言应该更为严格。尽管如此,标准必要专利中禁令之签发并没有突破一般规则的约束。337禁令以337条款为判断基础;永久禁令救济的适用以e Bay案确立的“四要件检验标准”为基础,考虑FRAND承诺约束下的标准必要专利的介入对于“不可弥补之损害”“公共利益”形成的冲击。对于标准必要专利中“公共利益”的考量可具象化为对非善意被许可人的判断。就非善意被许可人的认定标准,虽然仍存在争论,但美国还是在实践中达成了一些共识,可供我国借鉴。具体而言,明确下列情形可责令侵权人承担停止侵权责任:潜在被许可人拒绝获得许可;拒绝接受已经被认定为符合FRAND承诺的许可条件;拒不接受有管辖权的法院或双方同意的仲裁机构做出的裁判结果;在谈判中坚持主张明显超出FRAND原则的许可条件实际上拒绝给予专利权人足够的回报。另一方面,明确潜在被许可人对专利有效性、必要性与侵权与否的挑战,不能被视为是对符合FRAND承诺的许可条件的拒绝,而面临停止侵权责任承担的风险。潜在被许可人就专利权人提出的许可条件是否满足FRAND承诺存在争议诉诸法庭时,在司法裁判没有作出之前标准必要专利权人不得提起停止侵权之诉请。
[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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
本文编号：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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
【参考文献】
相关期刊论文 前1条
1 叶若思;祝建军;陈文全;;标准必要专利使用费纠纷中FRAND规则的司法适用 评华为公司诉美国IDC公司标准必要专利使用费纠纷案[J];电子知识产权;2013年04期
，本文编号：2500878
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2500878.html
