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UM E-Theses Collection (澳門大學電子學位論文庫)

Title

Transnational patent infringement litigation : jurisdiction and applicable law

English Abstract

Abstract An important characteristic of patent rights is embodied in its territoriality. According to this principle, patent cases can only be heard by the court of the place where that patent is registered or granted under lex fori. Compared with the issues of validity and breach of contract, the issue of patent infringement has become increasingly complicated. With the increasing frequency of transnational economic trade, patent as a type of property right with huge economic interests is currently confronted with the danger of infringement from more than one country. Undoubtedly, there will be lots of negative influences if the principle of territoriality strictly enforced. The infringer shall set up lawsuits before the court of the place where that patent is registered or granted one by one. The international community makes great efforts to promote the enactment of international conventions or regional agreements on transnational patent infringement. As it were, the system on patent examination and trial system can't be uniformed over the years, the solutions to international patent infringement problems have to be dependent on the conflicts of laws. For the judges, there are two steps to be taken into account in hearing transnational patent cases: the first is whether the court has jurisdiction, the second if the court is endowed with jurisdiction applied to the rules of law. This thesis analyzes the issue of jurisdiction from three aspects as follows: First, patent infringement is indentified as a type of tort. So, shall the well-known jurisdiction rule for tortious act be applied? Second, transnational patent infringement disputes are normally involved in many defendants. In order to prevent inconsistent judgment and ensure litigation convenience, can consolidated action be adopted? Thirdly, it is necessary to find out whether the parties' autonomy shall be respected. In terms of the problem of applicable law, the analysis of this thesis is carried out from the following two aspects: First of all, if the court of the place where the patent is registered or granted is lack of exclusive jurisdiction, the court may have jurisdiction on transnational infringement cases. Then, which law will be applied? Secondly, do the parties have the right to choose the applicable law? This paper analyzes the above-mentioned problems in detail and aims for providing some constructive suggestions for China's current system. Key word: transnational patent infringement, jurisdiction, applicable law, patent system of China

Issue date

2016.

Author

Li, Ao

Faculty

Faculty of Law

Degree

LL.M.

Subject

Patent suits

Patent infringement

Supervisor

涂廣建

Files In This Item

TOC & Abstract

Location
1/F Zone C
Library URL
991000825939706306