A study of Mainland China's Patent Protection- A Closer Look at Remedies for Patent Infringement
| Autor: | Li Wei Huang, 黃立維 |
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| Rok vydání: | 2006 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 94 Patent law did exist in 1950’s in China, but it was not actually operated. With the slow development of the nation as well as the destruction and interruption of the society by the Cultural Revolution, it was not until after the Cultural Revolution that Deng Xiaoping was able to lead China on the road to reform. At the same time, China began a holistic construction of the country’s legal infrastructure, and patent law was reborn at this time. In research of the tort remedies in Chinese patent law, a unique feature “the dual remedial procedure” is produced in comparison to other countries with a patent system. Other than tort compensation, there are also authority handling, where the administrative powers intervene in patent tort disputes, allowing parties to have another options for remedies. However, such a uniquely Chinese system may have had its context at the beginning of legislation, but after amendments of patent law twice, administrative power has been limited. Looking to the future of Chinese patent law, we may have questions below. Is there any point for such a system to exist? Does it need any adjustment with the times? If so, how can we adjust it? These are the points of emphasis in this thesis. Solving the issues above may begin from the observation in Chinese patent legislation promulgated in 1984. In additional to the patent law of 1984,because of the internal reform, international pressure from super power countries, and incentives from entering WTO, Chinese patent law has been twice amended in 1992 and 2000. After introducing the legislative background, this thesis discusses the types of patents granted, subjects protected by patent rights, active and passive elements of patent rights grants, the limits of authority of a patent owner after acquiring patent rights, regulations involved in the acquisition and duration of patent rights, the initial review and substantial review of a invention patent and the temporary protection afforded. It is hoped that readers can understand the substantive content of Chinese patent law protection. Further, the thesis is also connected to the application and review regulations of Chinese patents; through the application and review system of invention, utility model and design, the difference between initial and substantial review, which shows the important role played by “The review guideline”. Before discussing the dual remedial system, it is necessary to understand the key points of torts, which comprehend the scope of patent protection, the constitutive elements of torts, the liability, and exceptions of liability. So called exceptions means that compulsory permit and behavior not deemed patent torts, which will also lead to China’s newly validated “Measures for Compulsory License on Patent Implementation concerning Public Health Problems ”. As for China’s dual remedial system in patent law, first I propose personal observations from a legal perspective, then discuss the procedural questions involved in civil and administrative remedies. This mechanism includes an injunction before a civil lawsuit, as well as the administrative remedy of border protection. Finally, the relationship between civil remedies and administrative ones is used to emphasize the dual remedial system. Finally, the cross-straits economic relation is used as a basis to explore the solution mode of cross-straits patent torts, to simulate the possible circumstances, and provide solutions and arrive at conclusions. From the aforementioned points and comparative analyses of the number of cases, the point is to assess the future of Chinese patent tort dual remedial system, whether it should be kept or abolished, or adjusted. It is hoped that in the expression of this thesis, a view for the future can find orientation, and provide a space for consideration in patent protection between the economically connected two sides of the Taiwan Strait. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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