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UM E-Theses Collection (澳門大學電子學位論文庫)

Title

Exclusive or extraterritorial? : jurisdiction in cross-border patent infringement, a Chinese perspective

English Abstract

I. Introduction Patent right is territorial in nature. It is widely accepted that a patent granted by one nation prohibits infringing activity only within that nation's borders, and should generally not apply to activity outside its borders. I The reason that patent right is so strongly territorial is that it close connects with the registration action of a government which embodies a country's dominion. And the necessity of registration depends on characters of patent rights which are immateriality, economy and property. The purpose of dominion is to maintain a country's profit in maximum. On the other hand, it is also clear that patent right is one type of civil rights and has all common features of general civil rights. Generally speaking, matters of jurisdiction, applicable law and recognition and enforcement of foreign judgments are dominated under a country's domestic rules of private international law unless conventions provide otherwise. Accordingly, issues in relation to protection of rights from infringement may usually fall under the similar procedure law applicable to other civil cases. However, comparing with other civil rights, the most prominent character of patent rights is the registrability based on the situation that the role of national authorities which has the only right to grant or register of such rights could not be replaced. A distinction thus needs to be regarded between actions involving the validity of patent right itself and actions based on the infringement of patent rights. This is also corresponding to one of important aims of the Draft Hague Convention — "to promote international co-operation in procedural issues, the territorial nature of patent forms no substantial obstacle, in infringement cases, to conferring jurisdiction on a court other than the one in the place where the patent rights concerned have been registered or granted". In fact, it is urgent but difficult to make a clear distinction between patent cases on one hand and other civil and commercial cases on the other. This becomes critical and important in the application of jurisdiction rules in transnational patent cases. Therefore, it might be a primary work to distinguish jurisdiction in relation to patent rights from those of existing rules including important international conventions and national rules of representative countries.

Issue date

2010.

Author

Fei, Song Ran

Faculty

Faculty of Law

Degree

LL.M.

Subject

Conflict of laws -- Intellectual property

Conflict of laws -- Intellectual propert -- China

Intellectual property

Intellectual property -- China

Patent infringement

Patent infringement -- China

Patent laws and legislation

Patent laws and legislation -- China

Supervisor

涂廣建

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Location
1/F Zone C
Library URL
991004630969706306