Wan Chuan intellectual property - USA monopoly law, copyright law, patent law the basic legal system and judicial enforcement

In 2011 May, the Supreme People's court 728, composed of delegations to USA anti-monopoly law and intellectual property law for a period of three weeks of training and exchange activities. Delegation of experts from government departments, and American court, academia and the private sector conducted extensive exchanges, have certain understanding to the development history of more than 120 years of the anti monopoly law America, further understanding of the main characteristics USA intellectual property law and its latest development, following the training project report.

Wan Chuan intellectual property Mr.lai reminder: America, Germany, South Korea registered trademark, patent application (invention, utility model, design), Hongkong trademark, international trademark, Hongkong company affairs, two soft identified, new found, science and technology achievement transformation Larsen; 13602566525 MSN:szlqpwolf@hotmail.com QQ:764681061

The basic legal system and judicial enforcement of the anti monopoly law, American

1, American antitrust law and policy development history and overview

In nineteenth Century 70-80 years, the rapid development of USA industrialization, market scope expanding,

Economic development is faced with hitherto unknown growth and change. In the process of economic development, in order to improve the competitive ability of enterprises, gradually emerged between the trade union, such as beef trust, sugar and other trusts. With the passage of time, American commercial giant cartel intensified, abuse of dominant market position phenomenon spread, for the protection of free competition, American Congress passed the "Sherman law" in 1890, in 1914 adopted the "the Federal Trade Commission Act" and "Clayton", the three laws become America anti-monopoly law framework laws.

The main USA anti-monopoly law and very little has the substantive provisions. Such as "Sherman law" first stipulates: "any contract, trust or other forms of combination or conspiracy, if restrict interstate commerce or foreign trade, are illegal behavior...... The violation of these Provisions shall be a felony (a fine, fine or imprisonment)." Rule second: "if any one monopoly or attempts to monopolize interstate commerce or any part of a trade with foreign or jointly with others to achieve the monopoly and collusion, when a felony (punishment method ibid.)." "Sherman law" of the text content is very broad, its concrete application is through the law enforcement is the continuous accumulation of experience and the case is unceasingly rich and the continuous development of the common law system, which is also in line with the characteristics of.

1914 "Clayton law" stipulates four kinds of illegal behavior, but does not stipulate the criminal responsibility. These four kinds of violations are: price discrimination -- with the different price selling the same goods to the same conditions buyers (second); exclusive dealing contract -- buyers and sellers to stop competitors to trade for the conditions of contract (third); combined with corporate merger -- competitive enterprises (seventh) the board of directors; and chain -- competitive enterprises have common board members (eighth). Among them, seventh regulation combined with one of the most important monopoly competition enterprises.

In 1914, "the Federal Trade Commission Act" provisions of article fifth: "in a business or influence the unfair methods of competition of commercial and business or commercial unfair or deceptive acts or practices, are illegal." "The Federal Trade Commission Act" does not require criminal responsibility, and the Federal Trade Commission can only give equitable relief.

　American anti-monopoly law mainly aims at the behavior of three kinds of monopoly agreement: "regulation first Sherman method", the monopoly agreement can be divided into horizontal monopoly agreement and the vertical monopoly agreement, the second regulation of the abuse of market dominant position to exclude competition, mergers and between the "Clayton law" article seventh the competitive enterprises the.

2 basic principles, USA anti-monopoly law and basic methods

USA anti-monopoly law through indirect adjustment to the competition, enhance consumer welfare, rather than forcing business fixed price or provide special services. America antimonopoly law is to guide enterprises to achieve the lowest production cost in the premise of guarantee product quality, can recover the cost under the premise to the lowest price of the sale of products.

Case: Goldfarb v.Virginia State Bar someone need to buy a house, he needs to hire a lawyer to help him to complete the transaction, all lawyers near Virginia's agreement to charge 1% service fee in accordance with the housing price.

-- the agreement is illegal? Why? The protocol is harmful to the public interest?

-- lawyers in violation of antitrust laws?

-- whether the property buyers can help antitrust law filed an antitrust lawsuit? Or whether prosecutors can according to anti-monopoly lawsuit brought against a lawyer?

(1) the itself illegal principle (Per Se Rule) and the reasonable principle (Rule of Reason)

Over the years, in America anti-monopoly law implementation process, involving multiple corporate behavior has been applied in the case of the itself illegal principle, namely enterprise behavior as long as in violation of the law is illegal, regardless of the presence of deliberately or impair public interests. As the cartel agreement, the cartel agreement, competitors through protocol to a fixed price or limit output or distribution area, customers, thus limiting competition. Cartel agreements are agreements to restrict competition, and not on the company's business efficient integration, so the cartel agreement is illegal, unreasonable, illegal. Apply the itself illegal principle the famous cases, such as USA v. Terri Lun pottery company case, 273 US 392 (1927) (in this case the horizontal price fixing is itself illegal); Palma v. Georgia BRE case, 498 U.S 46 (1990) (in this case the market allocation is illegal); USA v. slope, test case F.2d 290, 652 (2d Cir.1981) (the case clearly collusive tendering is itself illegal); Albrecht Ca pioneer company case, 390 U.S.145 (1968) (the highest price fixing case clear vertical belongs to the itself illegal); American v. the case, 388 U.S 365 (1967) (the clear vertical territorial restriction is itself illegal); American v. SOCONY vacuum oil company case, 310 (1940) US 150. Apply the itself illegal principle, if the firm fixed price, market division or boycott (refusal to deal), their behavior is illegal and will not be any for the defense.

But with the economic development and social progress, the social public to the consumer welfare and efficiency of attention degree unceasing enhancement, the competition between brands attention degree unceasing enhancement, not only pay attention to the internal brand competition. At the same time, in the analysis of Cattell, to distinguish different competitive effects of horizontal and vertical agreements also becomes more and more important. Based on the above reasons, American comparable antitrust cases in treatment is no longer simply apply the itself illegal principle, at present, the itself illegal principle only for horizontal agreements in the "price fixing", "bid rigging" and "rival distribution market" monopoly practices applicable.

at present, America anti-monopoly law enforcement departments usually preference analysis principle reasonable damage or, by comparing the special agreement on the public interest may cause income to judge this behavior is a violation of the anti monopoly. If mainland Co. v. GTE Sylvania case, 433 U.S.50 (1977) (the ruling explicitly "for this area is based on reasonable rules to determine the", "vertical limit so that manufacturers can achieve some of the efficiency, so as to promote competition between brands.") ; commercial electronic Co. v. Sharp Electronic Co, 485 U.S.717 (1988) (the case clearly in accordance with "Sherman law" the provisions of article first, the longitudinal restraint of trade is not illegal in itself, unless it also contains information about the price and price level of some protocol); State Oil Co. v. Khan case, 522 U.S 3 (1997) (the case the ruling the court rejected "per se" rules for handling longitudinal price cap, identification of most commercial arrangements should be based on reasonable rules to evaluate. ); Leegin creative Leather Co. v. PSK case, 551 U.S 877 (2007) (the ruling overturned the old that has lasted for 100 years (Dr. Meyers case), that the minimum resale price maintenance all the plan itself illegal adjudication is flawed, "antitrust doctrine, is more to the lawyer's interests... Not to the interests of consumers." Vertical restrictive jurisdiction by reasonable rule)

Case: Polk Bros v.Forest City

The two chain store to buy a piece of land next to the freeway, common to build a parking lot with many shopping malls. In the two shopping malls do not exist at the same time area, one mall also sell another shopping mall sales of goods, but in the new shopping malls in the highway, the two stores are selling different goods reached an agreement to avoid competition.

-- this agreement is illegal?

The agreement to the public interest -- which has brought damage?

-- the agreement to the public benefits are greater than the damage?

Case: US v.Standard Oil Co (single enterprise behavior)

Standard Oil Corporation in gasoline smelting and supply in the United States has been in a leading position, but when the other new manufacturers want to enter this field, Standard Oil Corporation with suppliers and distributors signed an exclusive contract and setting new manufacturers unbearable prices, limit the other manufacturers to enter this field.

-- the behavior is a violation of the anti monopoly law? The damage which the public interest?

-- the behavior whether to bring to the public welfare?

-- whether this combination is the best example of abuse of market dominant position?

The above behavior -- what remedies?

The principle of reasonableness in the antitrust case, first of all to make reasonable rules of the test, to determine whether an act constitutes a unreasonable restrictions on competition. Reasonable rules test, need to consider the following factors: 1 specific cases, related industries; 2, limit the sexual behavior before and after the implementation of comparative case; 3, the limiting behavior of history, nature and effect etc..

Application of reasonable rules step is usually referred to as the "three step method", mainly includes the following steps: the first step, the plaintiff must prove that the behavior has been or may reduce competition; the second step, if the plaintiff can prove that the defendant must first step, produce evidence about promoting competition; the third step, if the defendant to show the evidence the plaintiff must prove, this behavior is anti competitive.

The plaintiff can be proved by method of structural analysis or market the existence of damage. Specific methods are as follows: first to define the relevant market, including product market and the geographic market; secondly, to prove that the implementation of monopoly enterprises with the market power; finally, to prove the nature and effects of restrictive practices may affect competition. The Federal Trade Commission v. Indiana dental coalition [476 U.S.447460 (1986)], the court established the "actual anti competitive effect" principle, namely, "if it can be shown that the actual damage, such as yield reduction," there is no need to carry out market research, because it is "a substitute. The consequences of damage". In America anti-monopoly law in the existence of a proof of harm "shortcut", namely "fast check" method, this method is mainly applicable to almost is illegal, but the antimonopoly damage its itself does not completely illegal behavior analysis. Such as v. Federal Trade Commission California Dental Association case [536 U.S. 756 (1999)], the court made clear the following principles: if "can be identified relevant arrangements will produce anti competitive effect" for economics has only a preliminary understanding of the people, according to analysis of reasonable rules without the need for comprehensive. The Federal Trade Commission in anti-monopoly cases also applied "inner suspicious" standard, namely, if a constraint measures have "intrinsic suspected", which has the potential to limit competition and reduce output, you need to explore whether can prove its legitimacy from the efficiency angle. If you can't prove it has the effect of increasing the efficiency, the restraint is illegal, if it can be shown that, then to analyze the rule of reason comprehensive. If you want to prove that agreement is to promote the competitive effect, you need to prove that the protocol can promote the product cost reduction or to promote innovation or to improve the service and quality.

(2) the relevant market definition

Monopoly case, usually should define the relevant market. Market including the seller to buy as a substitute goods, for example, can any fuel instead of oil. The market also can be divided according to the region, in defining the geographic market, often face the problem of consumers is willing to run far to look for alternatives? At the same time, the market is constantly changing, for example, some of the products, the emergence of the Internet makes the relevant market is irrelevant. But very little impact is for some market of the Internet, such as now in addition to gasoline, the car also can not use other fuel, cars are not to go through the internet.

Case: Utah Pie v.Continental Baking

A local company in Utah, production of frozen dessert pie, the company occupied the area about 65% of the market share of frozen pie. Later, another national company has lower price the same quality, leading to the local companies market share dropped to 40%. The local company sued the company exists monopoly illegal.

-- the local company claims should be supported?

-- this big company into school market is increased public welfare or damage the public welfare?

Law enforcement mode 3, American antimonopoly law

Law enforcement American anti-monopoly law mode mainly includes implementation of government and private. If the government through the litigation, the enforcement of the anti monopoly law, cannot be released through the command mode and can only persuade the court to obtain a court decision support. For criminal cases (only applicable in cartel cases), sanctions method the government can use a fine or imprisonment. In civil cases (such as protocol, monopolies and mergers), only by the government to court to perform. The decision on the administrative punishment made by the Federal Trade Commission, such person may appeal to the court.

America anti-monopoly law enforcement departments including the Ministry of justice, the Federal Trade Commission and the state attorney. The Ministry of justice as one of the American administrative department, mainly in charge of antitrust criminal cases, civil cases (Cattell) (protocol, monopoly, annex). The Federal Trade Commission as an independent agency, mainly in charge of civil cases (protocol, monopoly, annex), administrative cases. State attorney general manager under federal law cases and by the anti monopoly law under the jurisdiction of the state. In the way of relief, in criminal cases (Cattell) is mainly fine or imprisonment penalty; in the government as one of the parties in Civil (or administrative) cases, mostly by means of equitable relief, usually by the court to stop the illegal acts or to comply with the requirements based on different facts dealt with different principles. For the administrative decision in the case of processing the Federal Trade Commission to the court, administrative decision; for the merger cases (usually the government administrative cases treated), the court will issue a prohibition, requirement enterprise must not be merged or divided; for the private enforcement cases (or the government as the customer's case), the court may make illegal judgment behavior of the enterprise to pay damages.

Since, the private enforcement of anti monopoly law is an important way that the enforcement of the anti monopoly law. Natural damage due to monopoly or company can get in the way of private enforcement of damages, compensation includes 3 times the damages and attorney's fees paid by the litigation. The private enforcement of anti monopoly law the main aim is to ensure the company of natural person by or against the compensated timely for antitrust violations, while enhancing the antitrust violations enterprises deterrent, encourage the activist. In the private implementation, allowing the use of the collective action model (representing many customers filed an antitrust lawsuit), also allows the attorney general on behalf of civil litigation against monopoly.

4, USA antitrust litigation proof of damage and compensation

(1) general measure of damages

USA anti-monopoly law only allows the damaged claim "business or property damage," ban to claim cannot be measured in terms of money damages. Claim against only monopoly damage, namely "that kind of damage to prevent the anti-monopoly law, and is caused by the illegal conduct of the defendant".

American court of claims on the following because the monopoly of damage caused by the appeal will generally accepted: 1, for antitrust violations and paid higher prices customers do overcharge claims; 2, for illegal behavior is excluded and the profit loss claims in the disadvantageous position of competitors. The following claim appealed generally not be accepted: 1, for anti competitive and illegal behavior of non related damage claims for consequential damages; 2, the claim for compensation demands; 3, derived from the others claim it, such as a company's employees, suppliers and shareholders can not be affected by the company damages damages.

(2) and pass the relevant rules

In order to prevent the emergence of high damage compensation litigation, courts usually don't accept American action for damages caused by damage on. Buyers of direct damages will not because of its customers on the high costs amount decreased, the indirect purchaser will not be imputed high costs and damages, unless it can be proven that the direct buyers did not receive any damage.

(3) the proof responsibility for damage

The plaintiff must prove a, damage the actual because of monopoly behavior from existence; B, exists between the causal behavior that the actual damage and the illicit relationship, namely the damage is caused by the illegal behavior; C, a decomposition of the damage, which requires a separate action from the listed non law caused by. Among them, to prove the existence of causal relationship is very complex, operators often illegal behavior will cause business failure due to a more powerful opponent. In this case, the court may determine that the alleged rival illegally behavior, but this does not prove a causal relationship between the illegal behavior and the plaintiff's injury, because the low efficiency of the plaintiff and poor management could be the main reason for the failure of the operation.

The plaintiff suffered damage is generally composed of experts in their employ to assess, the plaintiff need only make a reasonable estimate can be the harm suffered.

(4) quantitative analysis of damage

Most of the antitrust case, the most common damages the plaintiff compensation is for the loss of profits. In evaluating a company's profit loss, need to predict in the non occurrence of illegal behavior of the company the past and the future would achieve performance. Estimation of loss of profits is not usually conducted by economists, does not involve the analysis of many data.

Quantization for overcharge causes damage, its calculation is purchased by multiplying the number of estimated overcharge, estimate the amount of overcharge often involve product series, geographic region and time period. High costs lead to cases of compensation for damage, the main data source of damage quantification to defendant and customer business records. For the estimation of high costs often used before and after some form of comparison, is before or after the price and then in damage period or before this price comparison. In view of factors other than illegal behavior may also affect the price, so to quantify the damage, must make a description of all the important factors that affect the. If the illegal act is only have an impact on the part of the local market, is not affected by the market can be used as a baseline for comparison. But the difficulty lies in comparable were not affected by the market often does not exist, even if there is, it is difficult to obtain the appropriate evidence. As a city that was found in collusion, cartels, the products affected by the average price of 12, and in the adjacent city of fold only 10. If the factors affecting the supply and demand relationship between two city are comparable, then estimates the high costs of 2. But if the factors affecting the supply and demand relations between two city is not over, the comparison of no use. In the method of overcharge quantization is a "double difference" estimation method, the method will be the benchmark comparison and compared before and after the combination, provides an ideal means for indicating that factors other than illegal behavior on price, but this method is difficult problem is the appropriate data is often difficult to get. As the cartel hypothesis a city, the products affected by the fold in the conspiracy before is 10, for a period of 12 in collusion. But in a neighboring city, fold in the conspiracy before is 10, for a period of 11 in collusion. Estimation of the high costs of 1, calculation method for the price difference between the two: (12-10) - (11-10).

An alternative method of high costs of quantization is to simulate the illegal behavior in the absence of the competition situation using economic model. The model should be supplemented by the observation of similar market no illegal behavior, the model can predict the relationship between price and cost, and then combine it with the cost data, the estimated price in the absence of illegal case. Although this method is rarely used, but American court together major Cattell case in the trial had been used.

Challenge and change 5, American anti-monopoly law faces

In USA twentieth Century 30's economy during the great depression, USA market economy and free competition by hitherto unknown challenge, the cartel is legalized, the anti monopoly law has been left out in the cold, market the product yield declining. But with the development of economy and the failure of cartel legal test, anti monopoly as an important public economic and social management policy to attention. In twentieth Century 70 years, American anti-monopoly law is undergoing great change. The Chicago school America anti-monopoly law have raised strong criticism in the theory and the practice effect of substance, certain provisions of anti-monopoly law only pays attention to the external form of the law and do not pay attention to the law, a lot of law in economic adjustment policy did not play its due role.

America anti-monopoly law is the protection of the competition itself, rather than. America future anti-monopoly theory research and practice, re evaluation will be on the vertical agreements and the legitimacy of the effect, to benefit the efficiency competition fully affirmed and recognized, will focus on the research of horizontal monopoly agreement, especially the price fixing cartel, will pay more attention to the research of burden of proof in the exclusive monopoly in the case. Assume the problem American anti-monopoly law the current theory and practice circle pay close attention of various defense responsibilities in antitrust cases, especially in the burden of proof problem of private enforcement cases "rationality"; in the monopoly agreement, to distinguish between horizontal agreements and vertical agreement is being paid more and more attention.

Now, win an antitrust lawsuit is more difficult than in the past in America, America law gradually aware of the fierce market competition between large enterprises tend to make the social public benefit. In the antitrust case, shall be of the monopoly is brought to the social public welfare or damage were compared. Regulation on monopoly behavior should be able to effectively prevent the social public interests are damaged, but the premise is more important to avoid damage to the important social public values such as encouraging innovation.

Two, America copyright law and trademark law basic legal system and judicial enforcement

(a) on Copyright Law

Mainly involves two aspects: 1, the rational use of copyright issues; 2, and related to the Internet.

1, about the rational use. Stanford University law school, Anthony Falzone introduced America copyright law is the most unique and reasonable use system. Consider whether a reasonable use of four main factors: 1) the nature of the use of nature; 2) is to use the works; 3) using the number; 4) to influence the works being used market.

Anthony Falzone introduces 4 reasonable use case. Including the famous Harper & Row Publishers. Inc. v. Nation Enterprises, 471 U.S. 539 (1985), namely "Ford autobiography". The defendant before the book was published in the journal published the first part of the new content of the most wonderful. USA Federal Supreme Court that it cannot defend to rational use. The unpublished works is one of the important factors, while the number of defendants used although not much, but the essence and the core part is the plaintiff in the works, so the same factors adverse to the defendant.

Another famous case is relevant to the song Pretty Woman parody (parody): Campbell v. Acuff-rose Music case, Inc., 510 U.S. 569 (1994), is also USA Supreme Court decisions. Anthony that the case can be seen as a turning point, before about the most important nature of the use of the use of works is to consider whether for profit, but in this case, the Supreme Court held that the commercial property is one of the important factors, is the defendant's use is the conversion of (transformative), by way of expression new, gives new meaning, convey a new viewpoint. Parody must use the original content to make people aware of the imitation of the object, and use is the characteristic content in the original, this is inevitable, not only this confirms that it belongs to the replication. On the use of too much if, need to consider the objective imitation works and its conversion component, and consider the original market alternative factors.

Falzone added two new cases, one is Blanch v. Jeff Koons (2006), the plaintiff is a photographer, she took a picture of a woman wearing sandals calf and foot photos for fashion magazines (called "Silk Sandals"), the defendant is a painter, he from the popular media and advertising to retrieve the objects in his works and the famous. He created a picture (called "Niagara"), there are four pairs of women's legs and feet, which contains a pair of plaintiff's works. The New York District Court for the Southern District that belongs to the rational use of, the second circuit court of appeals to maintain.

The second is related to the Korean War sculpture Memorial stamps case: Frank Gaylord v. United States (2009). The plaintiff was a sculptor, the Korean War Memorial Sculpture of the copyright owner. The stranger took after a snowstorm sculpture photos, American post office through the pictures to make stamp. The sculptor sue the government for copyright infringement, the court of Federal Claims (Court of Federal Claims) that constitute fair use, but the Federal Circuit Court of appeals (CAFC) overthrow, think the rational use of the first three elements are against the government, not to defend to rational use.

From Warner Bros. pictures of Dean Marks and Google Corporation Fred von Lohmann respectively introduces the Internet related copyright. California University Berkeley School of law of Jason Schultz of relevant technical measures and regulations are introduced.

Dean Marks to "indirect liability, reasonable measures and copyright policy" under the pretext of introduces the problem of copyright under the network environment copyright concerns. The indirect liability of copyright for those allowed to actively participate in and / or profit from the infringement of larger, more economic strength of the defendant (compared with the direct infringer) to obtain relief, indirect infringement exists in the direct infringement exists for the premise, but also to the filed a lawsuit against the direct infringer as premise. There are three types of indirect infringement of copyright law USA: help tort (know tort and substantive help), vicarious infringement (have the right and ability to control the tort and profit from it), the lured tort (in clear language or positive action to promote the infringing acts, but also that only help a tort). He introduced the DMCA case about safe harbor provisions, mainly discussed the "informed" problem. At present, the court case, only on tort have general understanding is not enough, in Viacom v. Youtube, Perfect 10 v. CCbill and UMG v. Veoh case, the court has the particular tort knows or ought to know that we can make the network service providers bear the responsibility, the court and think, not will judge whether the photo illegal this responsibility on services, if the service provider need for an investigation of the facts can be determined from the material whether tort, these facts do not constitute a "red flag". Dean Marks know that the problem has been to occupy too much attention, and is usually a results oriented, i.e. if the defendant should bear the responsibility, which is informed, otherwise, that is not know. Focus should be transferred to the "reasonable steps", based on the following ideas: "who can help, should help those who can help should help", service location decision to take measures to stop the massive unauthorized use of copyrighted works, no longer concerned responsibility standard of traditional, and focus on who has the power to stop infringing content. A service provider to take measures, including notification after deletion, the UGC (user generated content) web filtering, stop funding support (such as payment systems), clearing the search results, shielding website. If "reasonable steps" standard can be used, will not have to prove that service providers have fault, of course, is of great advantage to the right people. He believes that can be achieved through the business owner and service providers, can also through the case, legislation. This is a copyright policy issues, American existing an "Intellectual Property Protection Act" PROTECT IP Act uses the model, he believes that the EU Copyright Directive No. 8.3 is so.

Fred von Lohmann mainly introduces regulations of DMCA on four types of service providers haven.

About technical measures, America is the protection control contact to take on the human rights and the technical measures to control replication works specified in DMCA, prohibit the following three: 1) forbidding circumvention of technological measures to control the contact work; 2) are prohibited from offering mainly to circumvent the control contact measure tools; 3) prohibited provides the main in order to avoid the technical measures to control the replication tool. DMCA does not prohibit the circumvention of technical measures to control the replication, because copyright law usually can solve the replication problem. DMCA also provides some technical measures to protect the limitations and exceptions, such as not influence such as fair use defense, shall not prejudice the right of free speech, and based on education, law enforcement and other objective, reverse engineering, safety testing, for children or privacy protection etc.. The technical measures on the control of the contact, the federal circuit has a different point of view between the court of appeal with the Ninth Circuit Court of appeals. The former thinks of circumvention of technological measures of copyright infringement only reached the purpose of convenience, to give protection to technological measures, but the latter all protection, even if not possible infringement of copyright. Too strong to protect the technological measures may have an anti competitive effect, but also may cause the restrictions on free speech and free development, limiting the innovation, therefore need careful measurement.

In addition, relief and execution on the copyright, Losangeles assistant federal prosecutor Ronald Cheng to the delegation introduced in the USA for intellectual property crime. The intellectual property crime, America federal and state jurisdiction coincide. But more serious crime usually by the federal investigation agency to investigate, and then handed over to federal prosecutors handling. The criminal cases are usually plot in the conviction are very clear, such as the obvious piracy and counterfeiting cases, suspects can plea agreement "plead bargin" and the prosecution, in exchange for a lighter punishment. Paul Goldstein law school professor Standford introduced may obtain the civil remedies, including four types: 1) mandatory relief, such as injunction and permanent injunction; 2) confiscation of infringing goods and manufacturing equipment; 3) money, namely, damages, calculation methods including licensing fees, the plaintiff or defendant loss profit, or applicable quota compensation, namely each infringing works of $750 - $30000, intentional torts words can be as high as $150000 per piece. If the work has been carried out to prove that the defendant intentionally copyright registration. 4) lawyers. The plaintiff only the registration of copyright could receive fees.

(two) on the law of trademarks

Mainly involves two issues: 1, the theory of dilution of well-known brands and the legal protection of trademark issues; 2, and on the Internet, including keyword advertising and indirect responsibility.

1, desalination

Professor David Franklyn of University of San Francisco and Holland Alexander Tsoutsanis law (also teaches Yu Lei Deng law school) were described in America and Europe for the protection of well-known trademark, namely the dilution problem. Professor Franklyn quoted professor McCarthy said "about the legal theoretical desalination are particularly hard to explain and understand". Because USA Supreme Court in the Moseley request trademark prove "actual down actual dilution," Congress believes that this standard is not suitable, therefore modify the dilution method, the plaintiff to prove "likelihood of dilution likelihood of dilution requires only". America law desalination has two forms: dilution (blurring) or (Tarnishment). The plaintiff is required to prove that: 1) the very famous trademarks; 2) the defendant before use, already famous for; 3) the defendant has the contact with the consumer identification of famous trademark phase; 3) the link may lead to significant A. dilute the famous trademark; B. stain of famous trademarks.

In determining the "dilute" the following factors shall be considered: 1) similarity of two trademark; 2) the significant degree of famous trademarks; 3) the owner of a famous trademark for exclusive access for its trademark; 4) consumer recognition of the extent of the famous trademark; 5) the defendant whether intention caused two identification. Connections; 6) any real connection between the two logo. In the "Starbucks" and "Charbucks Blend" in the case, the second circuit court of appeals pointed out, anti dilution law does not require two of the identified constitute "substantial approximate substantial similarity", only to measure the degree of approximation (Levis case, the Ninth Circuit Court of appeals also pointed out that do not require two identity with same or similar), at the same time, also do not go to the defendant malicious (bad faith). In the Top Tobacco case, the Seventh Circuit Court of appeals pointed out, for the "top" such a common words, can not be monopolized by the company, and points out that the anti dilution law requires visibility should be for the general public, thereby excluding the area of well-known (niche fame) (about word problem, Visa in the case, the Ninth Circuit Court of appeals that specific, important is not to identify itself if common vocabulary, but the use of the logo environment are unique to enable them to obtain trademark protection. In a trademark case, because prior to the "the other white meat", "the trademark appeal board rejected other red meat" registered. New York District Court for the Southern District is that "Miss Asia USA" does not constitute "MISS USA" fade to.

A desalination by tarnishing caused, the Sixth Circuit Court of Appeals in the case of Victoria 's Secret pointed out, that defile standard is defiled may cause contamination than practical, if the use of trademark in the sex of commodities in the post, the court will have the possibility to defile prior trademarks presumption, the presumption is rebuttable, the transfer of burden of proof to prove the possibility, by its unstained. But in the case of Starbucks, the second circuit court of appeals pointed out, if only the general has a negative meaning (negative sounding), does not constitute the presumption.

On the fair use defense, the fourth circuit court of Appeals in LV v. pet chew toy manufacturers in the merchandise on the use of "Chewy Vuitton", "CV" case, think, although parody is a statutory fair use defense, but when the defendant to indicate their goods to source can not be used, but in consideration of related factors, especially the last two factors: whether there is a genuine connection between cause two identification and between two mark, to consider the nature of parody.

Alexander introduced on the protection of well-known trademark is the latest development in europe. Different from the American, desalination is a type of trademark infringement, but also suitable for similar goods. In the Pago case, the court expressly "community trademark must be in the community area of the substantial part of the substantial part as an important part of public knowledge", sometimes in a member's domestic reputation is enough. In the Formula 1 case, OHIM believes that brand visibility is restricted to its particular design, the mark must not be extended to the general way of writing. In the case of Intel, to demonstrate the significant characteristics of the trademark of the damage, must prove "serious possibility of economic behavior of consumers change or change will happen in the future". Of course there are considered for the Intel case should not be too strict interpretation, the crux of the problem lies in considering the overall situation of the case, the damage is predictable (foreseeable). In another famous L ' Oreal v. Bellure (2009) in the case, the European Court of justice put forward "the defendant obtain improper benefits take unfair advantage" argument, does not require the plaintiff prove detrimental to the. In this case, the plaintiff to produce several famous expensive perfume, "the production of cheap perfume smells almost smell a-like", packaging and the corresponding perfume similar (but consumers can distinguish), and by comparing the list that the plaintiff which kind of perfume fragrance similar, such as "Pink Wonder" to the "Miracle". The European Court of Justice ruled that: if others take a well-known brand of the rider, purpose is from the identification of profit for consumer appeal and popularity, and the use of the trademark owner to create and sustain the identifying image and effort, without paying any economic compensation, which is from the salient feature of the trademark and reputation for improper benefits constitute EU trademark directive, article fifth (2) of the infringement, but is not required to prove the possibility of confusion and damage to the plaintiff's trademark characteristics or to the plaintiff. This decision is clear to the trademark owner is very favorable, but also triggered a lot of controversy. For example, I saw a comment that the absolute position of the ruling given "reputation" similar property, is a "depressing decision depressing". At present, the European Court of justice in the case and a Interflora v. Marks & Spencer, we expect the decision to clarify this issue.

2, trademark issues associated with the Internet

Professor Eric Goldman Santa of Clara University Law School introduced with the keyword advertising and domain related content. Associated with the keyword advertising case, a trademark prosecution of search engines, such as Google for the 5 cases that are, in the case of Rescuecom Google basic appeal case, the district court that it did not constitute indirect infringement, caused no trademark dilution. The trademark owner charged advertisers case is very much, in 3 a jury trial in the case of trademark right losing, per capita, summary judgment (summary judgment) cases, on the issue of consumer confusion, advertisers have won. These cases from a purely economic perspective for the trademark owner has little significance.

The Google keyword advertising take trademark policy are as follows: in the America not shield of trademark right key, the advertisement involving trademark, if the trademark owner asked general shielding, shielding, with the following exceptions: descriptive use or use for common words; resellers; spare parts, replacement parts and compatible goods vendors; provide information on the website.

On the initial interest confusion, the Brookfield case is defined as "the use of the trademark for the first defendant intentionally attention of consumers, even if this confusion caused no actual sales", but in the Network Automation case, the court considered the possibility that the plaintiff must also prove the confused, simple steering (diversion) is not enough. Is not as original as in favor of the plaintiff.

In the indirect infringement of trademark, a lawyer at Cooley introduces some typical cases. Such as the Tiffany v. eBay case, involving online trading platform for the sale of fake products liability. The New York District Court for the Southern District of eBay have taken reasonable steps to prevent the sale of counterfeit products, only roughly know there may be some user sales of counterfeit products is not enough to make eBay's responsibility, the second circuit court of appeals also think, eBay does not constitute direct infringement, also do not constitute indirect infringement. Other may involve indirect liability subject, such as the Rosetta Stone v. Google, involves responsibility of search engine in the keyword advertising; Gucci v. Frontline Processing case, relates to the responsibility of credit card payment services; Louis Vuitton v. Akanoc Solutions case, liability issues involving hosts services for counterfeit manufacturers; Transamerica Corp v. Moniker Online Services case, involving domain name Registrar responsibility; Roger Cleveland Golf v. Prince case, involving Webpage designers of responsibility.

Three, USA patent law the basic legal system and judicial enforcement

(a) the basic situation American Patent Law Reform

In January 25, 2011, Senator Leahy and other nine people submitted America 2011 patent law amendment (the Amendment), content:

1, the first to invent system to a first application system

Amendment to the patent application system American by current first to invent system (first-to-invent) was the first to apply for (first-to- File) system. If the earlier application system, for each patent application will determine an effective filing date, and based on the review of existing patent technology before the date of application for patent and the patent application. The application system at the same time first in the introduction, a one-year grace period the original (grace period) will be retained, however, the grace period applies only to the inventor himself open to and from the public.

2, damages and punitive damages (Enhanced Damages)

On the calculation of damages, amendments to the procedural rules on the judge in the trial of a case of compensation issues and constraints. According to the bill, the court shall determine and compensation calculation method and related factors, the litigant request, the court should be compensation issues from the case singled out for review, unless there are reasonable grounds to refuse the request, for example, there is no major damage effect, does not constitute an infringement of copyright or patent the existence of the right problem.

Although the practice often discuss the punitive damages of willful infringement, but the current patent law did not explicitly restricted punitive damages only applies to intentional tort case, on the contrary, USA patent law article 284 simply stated: "the court may increase compensation to 3 times". In the judicial practice in the past, CAFC precedent, the provisions of the patent law interpretation to apply only to at least objectively was reckless reckless. For this problem, the revision shall be as follows: "unless the rights of people to the clear and convincing evidence that the infringer behavior is the objective reckless, it can not be identified a tort is deliberately. That is to say, the infringement behavior objectively has high possibility to infringe a valid patent infringer, and aware of the risk, or the risk is so obvious that the infringer should know, but still the implementation of the behavior of the infringer."

A willful infringement proof, amendment provisions, for willful infringement allegations must provide sufficient evidence, only proves knowledge of the patent right, is not enough to prove intentional tort; lawsuit before the notice of infringement in itself is not enough to prove intentional torts, unless such notice is in fact to be explained in detail on the tort; failed to listen to a lawyer do not be used to prove the intentional torts or deliberately induced infringement.

3, the validity of the patent right of the third party objection procedure (Third-Party Challenges to Patent Rights)

A total of three amendment provisions concerning the third party through America patent and Trademark Office (USPTO) way to challenge the patent: 1), third party authorization before submission. According to the revision, in a patent application process, the third party may submit any publication and the corresponding instructions to the patent office. 2), third party review of authorization procedures. Similar to program review existing procedures, ex parte reexamination amendment introduced can be initiated by any party. The third party through the program, may raise any legal challenges the validity of at least one claim. Where the request must be made within nine months after the authorization. 3), the review procedure (Inter Parties Review Proceedings): in the nine months of ex parte reexamination after the expiration of the time limit, the third party may file. The system will replace the current inter partes reexamination procedure (inter parties reexamination), but only applied patents or publications as the basis, the patent novelty or obviously presents challenges.

4, marking error (False Marking)

In recent years, many relevant patent marking the wrong case was taken to court, amendments to regulations, only the government can prove that the damage American, or competitors, can mark error filed a lawsuit.

5, the best implementation (Best Mode)

Amendment provisions, fails to provide the best embodiment of failed to claim a patent right invalid. But the inventor still has the obligation to provide best embodiment of invention, the patent office will still have the obligation if the patent application is the best embodiment of requirements review.

Amendment was submitted to the Congress before the patent law in 2011, 2010, the revision of the patent law in 2009 has been the patent law amendment has been submitted to Congress, compared to two prior to the amendment, the 2011 Patent Act Amendments of the content is more technical details of the adjustment, the overall framework and no real too big change.

(two) in recent years USA Supreme Court, CAFC and the Federal District Court of patent cases

1, the Supreme Court in recent years America typical patent cases and trends

Since 2000, the Supreme Court American actively involved in patent field, through a number of major cases on major issues in the field of patent law to clarify some of these cases, including: 1) in 2002, about the doctrine of equivalents and FESTO CORPORATION estoppel principle, PETITIONER v. SHOKETSU KINZOKU KOGYO KABUSHIKI CO., LTD., ET AL; 2 in 2006), about a permanent ban eBay Inc v. MercExchange, L.L.C., 547 U.S. in 388 case; 3), a 2007 KSR Int'l Co. v. obviously. Teleflex, Inc., U.S. 398), 550 case; 4 2010 on business methods, the software patentability of Bilski v. Kappos; 5), the burden of proof and standard of proof in 2011 the presumption of validity of patent right and patent right effect of MICROSOFT CORP. v. I4I LIMITED PARTNERSHIP ET AL. case. In addition to the above cases, important cases involving patent law American Supreme Court is hearing include: 1), a willful infringement and indirect infringement of Global-Tech Appliances, Inc. v. SEB S.A; 2), a claim the uncertainty of the Applera Corp. v. Enzo Biochem, Inc. case.

According to research conducted at Stanford University law school in Mei Gechlik, from 1999 to 2008, all cases in the CAFC trial, only 0.058% cases have been America again the court review, which is the lowest rate in the thirteen Circuit Court of Appeals in all. However, in 30 cases of all USA, the Supreme Court reversed a (reversed) of which 18, back to (vacated) 7, lasted only 5 pieces, and sent the revocation of the proportion is as high as 83.3%, in all thirteen court is the highest (it should be noted that, even if is the lowest of the Seventh Circuit Court of appeals, the cancellation and back ratio as high as 55.3%). In the period from 1999 to 2010, USA Supreme Court review 14 cases involving patent cases, cancel 12 of them, the revocation of the ratio of 85.7%. During the period from 1982 to 2010, the previous 15 years (1982-1997) the Supreme Court only review the 5 patent cases, and the recent ten years (2000-2010), the Supreme Court has a total of 13 patent cases review. Whether from the number of cases or legal issues from the cases involved, USA Supreme Court in recent years significantly increased the importance of patent cases, USA Supreme Court through a series of major cases, to make the American patent policy adjustment to the deep, in order to better adapt to society, economy, science and technology USA development needs.

2 typical cases in recent years, CAFC

In recent years, CAFC has made a series of important decisions, several important problems in the field of patent law be clarified, these cases include: 1) in 2010, about the patent authorization written instructions for substantive element in (Written Description) and fully open (Enablement) Ariad v. Lilly, 598 F.3d 1336 (en banc) case. CAFC in the case of clear, USA Patent Law Article 112 in the written description and fully open standards are different, a patent must also meet the two requirements. 2) decided in May 25, 2011 due to improper behavior (inequitable conduct) related to patent right can not be implemented (unenforceable) THERASENSE, INC. v. BECTON (en banc). In 2010 3) decisions involving American Patent Act of 271 (b) on positive inducing infringement (active inducement) SEB v. Montgomery Ward & Co., 594 F.3d 1360 case. 4) Lucent Techs. of compensation for damage in 2009, decided in 2011, Inc. v. Gateway, Inc., 580 F.3d and Uniloc USA 1301 case, Inc. v. Microsoft Corp., 632 F.3d 1292 case. In 2007 5) judgment about intentional torts In re Seagate Tech. L.L.C., 497, F.3d 13601365 case.

The basic situation of 3, a federal district court judge in patent cases

Relatively speaking, the number of the patent litigation America in litigation cases heard in a federal district court, only a very small percentage. For example, in 2008, America Federal District Court patent litigation only 2896 pieces, while the total number of lawsuits filed in federal district court in USA during the same period of 267257, patent cases accounted for only 1%. From 2002 to 2010, in the Federal District Court patent litigation are between 2500 to 3000 pieces, of which 2004, in 2010 the number of cases of slightly more than 3000, the number of cases overall remained relatively stable.

From the case of distribution, the Federal District Court patent cases distribution is very uneven, mainly concentrated in a few areas are relatively concentrated, some federal district court only a small number of cases, and some of the court is not even the case. In the processing of patent cases a maximum of 3 federal district court, two are in the more developed economy, a high degree of technical innovation, high-tech enterprises are concentrated in California (C.D.CA and N.D.CA) district court, another is the patentee, dear known by human rights in favor of Dezhou Eastern Court (E.D.Texas).

Some problems existing in 4, America patent trial

Although America Supreme Court and CAFC have made great efforts in the patent law unified law enforcement, but from the patent trial practice American at present, there are still a series of problems, mainly in the:

1), the trial scale difference, choose the court (Forum shopping) objective phenomenon. As the trial standard is not unified, the court for the patentee attitude difference, therefore, the patentee may choose to have filed a lawsuit to human rights court. For example, the Dezhou District Court patent cases, the patentee win ratio was significantly higher than that of other courts (55.1% in 2010, while in the success rate of ND.GA court, the lowest patentee success rate was only 11.5%), the number of the hospital in 2010 of patent cases in the second, second only to the high-tech industry the District Court of California from. Secondly, from the amount of compensation, the 25 highest amount judgment, 48% from Dezhou District court.

2), the lack of predictability in patent litigation. Because of the existence of claims interpretation rules are uncertain, the validity of the patent right, patent right is not easy to be overturned the executable, the amount of compensation is difficult to determine and many other uncertain factors in patent litigation, therefore, the results of patent litigation often lack of foresight.

3), patent litigation efficiency, time-consuming long, expensive. Evidence discovery system is an important system in civil procedure American, although the system will help the party to collect evidence, find out the facts of the case, but it is easy to be abused, resulting in low efficiency, litigation period is long, costly, not only bring huge economic burden and time cost to the parties, the parties dispute cannot receive timely, to adversely affect the normal business activities of competitors. Statistical data from 2000 to 2010, even the most short time Virginia Eastern court trial, enter the average time required up to 360 days, the Dezhou District Court (court in 2010 ranked second in the nation) required an average of 808 days, while the California district court accepts the case number (2010 ranked third in the nation it takes an average of 1066 days). Because of the enormous cost of, to some extent also make the party more inclined to reconciliation. In the 25000 patent cases from 2000 to 2010 statistics, there were 76% cases with reconciliation case, 15% cases issued a decision, the sentenced cases, the patentee success ratio is about 32.5%.

4), by the lack of the technical background of the jury in patent cases, an increase of cases of uncertainty. In recent years, more patent cases to a jury trial, the proportion of 90 years from the rapid increase of 25% to 70% in 2009, and judge (40%) compared to, the patentee has the more likely in a jury trial won the lawsuit (80%), the midpoint and the jury to determine compensation (the $10900000), is also much higher than that of the judge determine the midpoint hearing compensation ($700000). However, due to the jury lack of technical background and professional background, which makes the patent litigation has added more uncertainty.

5), intellectual specialization has been the lack of judgment. Unlike our court to set up specialized IP court trial of patent cases model, in American with the Federal District Court patent cases jurisdiction of judge, both hearing patent cases, also want to hear civil disputes and other criminal cases. Because the case amount is larger, and the patent case proportion is small, therefore, at least in the Federal District Court, it is difficult to do intellectual property trial specialization.

(three) several issues of concern America patent trial practice

1) the anti-monopoly regulation of misconduct, the abuse of patent right and patent right

Since World War II, America always occupy the frontier of science and technology in the world, has a large number of core technology and intellectual property rights, therefore, USA in relation to China, is always a high-profile protection emphasizes the patent right, don't care even worry about intellectual property rights restrictions. But USA in patent authorization and judicial protection in the process of implementation, and not one-sided emphasis on the protection of the interests of the patentee, but emphasizes the patent authorization rules and regulations for the implementation of the patent rights, and the establishment of the patent right abuse and anti-monopoly regulation, misconduct principles and a series of specific system to prevent the abuse of patent rights, maintain the normal order of market competition and innovation environment, the balance between patentee and the social public interests.

A, improper behavior

Misconduct is an equitable defense system USA courts in patent trial against the practice of patent infringement established, its theory basis lies in the common law "unclean hands" principle (the doctrine of unclean hands), USA Supreme Court in Keystone Driller Co. v. General Excavator Co. Hazel-Atlas Glass Co. v. case, Hartford-Empire Co. case, Standard Oil Co. v. United States Precision Instruments Manufacturing Co. v. Automotive case and the Maintenance Machinery Co. case is discussed. If the patentee implementing the misconduct, even if the patent is valid and tort, the court can also be based on equitable rules determine the patent right can not be implemented (unenforceable).

The patent applicant to America patent and Trademark Office (USPTO) the patented process, such as failure to perform its frank and honest disclosure obligations, which constitute misconduct. According to the USPTO rules, the grant of the patent right to affect the interests of the public, therefore, in the examination of patent applications, only in the USPTO awareness and evaluate all related to patent substantive information, to ensure the patent examination is the most efficient and most consistent with the public interest. Therefore, USPTO in the detailed rules for the implementation of article fifty-sixth (Rule 56) in regulation, and submit an application for a patent and the examination of any individual, frank and honest disclosure obligations are undertaken, including USPTO to disclose its known all has a substantial impact on the patent information obligation. In judicial practice, mainly including misconduct: failed to submit prior substantial applicant know foreign references; failed to provide explanations or fails to submit the documents of all or part of the already existing; false statement of fact, including making false statements in relation to the patent of invention in testimony to the description of the error.

Advocates of patent unenforceable parties (usually the infringer) bears the burden to prove that misconduct, it must be clear and convincing evidence (clear and convincing evidence) that the patentee intentionally the information to be concealed or false statements, and this information is substantial. As long as that the applicant is a claim of wrongdoing, will cause the entire patent right can not be implemented. Because there are defects, patent application process therefore, in America patent litigation, improper behavior is a very common and effective infringement defense strategy.

The latest progress on the misconduct, is the decision CAFC in court in May 25, 2011 by way of the THERASENSE, INC.AND ABBOTT LABORATORIES, V. BECTON, DICKINSON AND COMPANY, AND NOVA BIOMEDICAL CORPORATION, AND BAYER HEALTHCARE LLC (en banc). CAFC in the case of a detailed description of the development process of the theory origin, misconduct and the existing problems, and gives the detail elements inappropriate behavior and legal responsibility, its core ideas include: 1, the parties failed to disclose to USPTO under the condition of existing technology, the existing technology or information must meet the substantive requirements, can be found the existence of misconduct. The specific standard, the court shall determine whether the prior parties failed to disclose that has substantial influence, namely, if the patent office is aware of the information, will change the grant of the patent right; legal responsibility 2, improper behavior. As a basic principle of equity, improper behavior is just and fair (fairness), the alleged infringer based on the nature of the relief obtained with misconduct should adapt behavior. Although as a general principle, the obligee due to its improper behavior and obtain a claim and lead to an unfair interests, can make the whole patent (or patent family) can not be implemented. But in the judicial practice, still should be based on the nature of the misconduct, determine the relief can be obtained based on misconduct. Exception 3, substantive requirements. If the applicant is actively, consciously and there are plans to implement some deception patent office specific behaviors, such as submitted obviously false oath, the behavior itself is wrong, no longer consider whether the behavior information relating to satisfy the essential requirements. CAFC also pointed out that in this case, on the basis of not as the court determines that the improper behavior of the 56 rules set by USPTO.

B, the abuse of patent right (patent misuse)

The American system of patent abuse can be run separately in the institutional framework of patent law and antitrust law. According to the USA patent law, the patent abuse is an active defense in patent infringement litigation infringer can assert (affirmative defense) system, at the same time, the abuse of the patent right for compensation calculation of damages in tort, and the defense failed to pay Yue Dingxu fee. Including American patent law established in the judicial practice of typical abuse: 1, in violation of antitrust law; 2, the scope of protection of the patent right for a term or improper expansion (improper expansion of the scope or term of the patent ); improper behavior, and 3 patents in the process of implementation (in some cases is called "patent right can not be overcome abuse (non-purgeable misuse)". According to the provisions of the patent law of the America, the patentee enjoys the exclusive manufacture, use or sell the invention rights, therefore, in good faith to implement patent does not constitute patent misuse. In most cases, the patent right abuse can stop the specific behavior and to eliminate the effect way to overcome. However, the patent authorization process of fraud or misconduct cannot overcome.

The application of patent misuse also exist in the legal limit, which is mainly reflected in the USA Patent Act of 271 (d) regulations. America Patent Act of 271 (d) states: due to the patentee implementing one or more actions, not accordingly finds the patentee implementing improper or illegal expansion of patent, or refuse to give the result of violations or help tort should obtain relief: (1) to obtain profit based on a behavior, the behavior such as the third party without the consent of the patentee and the implementation of that constitute contributory infringement; (2) the implementation of the license or the authorized third party a certain behavior, the behavior of the implementation of agreed and constitute contributory infringement without the permission of the patentee; (3) the implementation of the patent to combat infringement or help tort; (4) reject any license or use the patented a right; (5) to obtain a patent license or buy another independent product for the conditions, the patent licensing or patent product sales to limit, unless, according to the specific circumstances, the patentee has to be restricted license patent or limit the sale of patented products in related markets market dominance.

Anti monopoly regulation C, patent right

If the abuse of patent right in accordance with the relevant provisions of the antitrust law, the infringer can also obtain relief by civil antitrust litigation mode. According to the regulation of antitrust law and related judicial precedent, in line with the monopoly behavior of other elements (such as: the patentee has market power in the relevant market) circumstances, if the patentee has the following two kinds of circumstances, can be identified as the monopoly behavior: 1, patent predatory (Patent Predation) patent, namely will be invalid in the knowledge that the patent right infringement, or obviously untenable situations, groundless filed a patent infringement lawsuit. 2, Walker Process fraud (Walker Process Fraud). Walker Process fraud is American Supreme Court in Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965) an anti-monopoly regulation of patent right principles established in the case, according to the Supreme Court in this case, if the patent holder of patent application by fraud USPTO the right, in accordance with the monopoly structure requirements of the situation, with Sherman method based on decision second patent shall assume the civil antitrust.

2, applicable and principles of regulation

Since 1950, USA Supreme Court in Graver Tank v. Linde Air Products case to establish the equal principle, equal principle applied in America in patent infringement litigation is always controversial whirlpool. The doctrine of equivalents in the applicable conditions, the scope of protection of patent rights requirements go beyond the written, although this is conducive to the effective protection of the patent right, prevent others from patent technology to obviously way, easily evade the patent infringement; but on the other hand, damage to the claims of the publicity effect, if used improperly, can easily lead to the scope of patent protection is excessive, damage the interests of the public. Therefore, America court in the trial practice, has adopted a very prudent attitude towards the application of the doctrine of equivalents.

Since 1997, America Supreme Court and CAFC through a series of important decision, and establishes a series of specific rules limiting the doctrine of equivalents, and strive to balance the interests of maintaining the patent right between the person and the social public. These restrictive rules include: 1), technical feature doctrine. America in 1997 the Supreme Court case of Warner Jenkison clearly, the doctrine of equivalents is equal technical features, but not including the overall technical scheme of equal, only the alleged infringing technical scheme has the technical characteristics and the patent all the technological features in the same or equivalent, we can identify equivalent infringement. For this problem, the CAFC Freedman Seating in 2007, 420 F.3d 1350, 1358 case further pointed out that, if the alleged infringing products effectively changed or omitted a technical characteristics in the patent claim, is the alleged infringing products cannot be considered to constitute the equivalent infringement. 2), prosecution history estoppel principle. America in 2002 the Supreme Court case of FESTO clearly, if the applicant for approval in history in the amended claim, should be presumed to be performed in order to obtain the revision of patent, according to the principle of estoppel, technical features of the amendment should be excluded from the application of the doctrine of equivalents. Principle of estoppel applies not only to avoid the existing technical modifications, including any patent related modifications. American Supreme Court in the FESTO correct and complete exclusion rules adopted in CAFC in the second (completely bar), and has established a relatively flexible, more conducive to the rights of the people of elastic rule (flexible bar). According to the elastic rule, the ban has three kinds of exceptions estoppel: (1) of ordinary skill in the art changes cannot be reasonably foreseen the equivalent features, and therefore cannot be the character to write text within the scope of protection claim; (2) the reasons for the change was not associated with equivalent features; (3) due to other reasons, led to human rights can not describe the non substantive changes. In 2007, CAFC SciMed Life Sys., 242 F.3d 13371347 case further pointed out, will not give up the theme to apply a clear process, re incorporated into the scope of patent protection. 3), not to overwrite the existing technical principle. In 1990 CAFC Wilson Sporting Goods, 904 F.2d 677, pointed out that in the case of 683-84, the right people not by using equivalent principle, the existing technologies into the scope of patent protection. 4, principles of contribution (Public Dedication Rule). CAFC in the Johnson & Johnston v. R.E. Service in 2002, pointed out that the 285 F.3d 1046 case, for the right people in the prospectus disclosure but not included in the requirements of the technical scheme of rights, can not be applied to the act of infringement of the principle of equal.

In the review process of the patent right, the right one is difficult to fully comply with the licensing standards written application documents, so often need to revise and improve the claims and description, or patent patent statement. Although the FESTO defines three exceptions estoppel, but because the applicable conditions of the exceptions are very demanding [1], therefore, the establishment of the FESTO case estoppel elastic rule, applicable principle in patent infringement litigation are strictly restricted. Plus all the technical features, rules and shall not cover rules donation prior rules applicable to space, the doctrine of equivalent has been very small. Therefore, American patent community and even a "equivalent