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On The Alternative Dispute Resolution Of Intellectual Property Rights Dispute  


Abstract Category: Laws
Course / Degree: Doctor
Institution / University: Xiamen University, China
Published in: 2008


Dissertation Abstract / Summary:

Because of the interest factor, system factor and environment factor, the intellectual property rights dispute is inevitable. With the increasing importance of intellectual property rights, the disputes relating to intellectual property rights have been increased sharply. There are various resolution ways and methods of intellectual property rights dispute, and they can be divided into three types: the public resolution model, the social resolution model and the private resolution model. For a long time, because of the confused understanding of the nature of intellectual property rights, the weakness of Alternative Dispute Resolution system and the view that the justice is omnipotent, the Alternative Dispute Resolution of intellectual property rights dispute has not been valued which it should be and a number of intellectual property right dispute swarm to the court. The court can hardly burden and causes the other adverse consequences. At the same time, because the intellectual property rights dispute resolution needs professionalism, effectiveness, confidentiality, internationality and diversity, and the tradition lawsuit resolving these disputes has a great deal of inadequacy, both from the perspective of satisfying the special needs of the intellectual property rights dispute resolution and the view of the evaluation of the effect of a dispute resolution mechanism. Therefore, we need develop the Alternative Dispute Resolution of intellectual property rights dispute.The Alternative Dispute Resolution of intellectual property rights dispute has rationalities and advantages. The legal system of intellectual property rights has closed relations with the Alternative Dispute Resolution mechanism. The main countries and districts in the world have been advocating that resolving intellectual property rights dispute outside the court. Of course, because the Alternative Dispute Resolution has its inherent shortcomings, so there are limitations when it is used to resolve intellectual property rights dispute and it is not appropriate to resolve all types of intellectual property rights dispute in practice.The social dispute resolution dealing with intellectual property rights dispute has legitimacy, and the real reason is that the private right nature of intellectual property rights. However, the intellectual property rights has public and social features, the use of social dispute resolution to this kind of disputes is properly limited by the public interests. The main types of social dispute resolution of intellectual property rights dispute is arbitration and civil mediation. In the intellectual property right dispute arbitration, there are three key systems, which are arbitrability, provisional order and confidentiality. The author makes a research on the three systems of main countries and international arbitration organizations’ legislation and practices, then review these systems of our country and point out the suggestions on how to perfect them. The civil mediation of intellectual property rights dispute has countered the double difficulties in theory and practice, but we can conclude that the civil mediation of intellectual property rights dispute has feasibility through analyzing the interest models in the intellectual property right infringement dispute. At the same time, the civil mediation of intellectual property rights dispute has great advantages. The other social dispute resolution of intellectual property rights dispute includes Evaluation of guidance, Mini-trial, Meb-Arb/Arb-Med, hybrid processes.The intellectual property administrative agencies having power of resolving civil disputes is the product of history, however, recently encouraging the administrative agencies to resolve dispute has comparative legitimacy and superiority. Of course, administrative agencies cannot interfere too much on the civil dispute among the equal social bodies, and only limited for maintaining the public interest. The administrative resolution of intellectual property rights dispute can be divided into two types, which are administrative reconciliation and administrative adjudication. The current relating systems in our country have shortcomings with different degrees, so we should correct and perfect them. At last, we should encourage the administrative agencies taking use of consensual administrative decision method to resolve intellectual property rights dispute.The goal model of intellectual property rights dispute resolution mechanism in our country is diversification. The lawsuit model and the Alternative Dispute Resolution model, and all types of Alternative Dispute Resolution models should be interactive and coordinate. The country should construct the diversified models of intellectual property rights dispute resolution from the lawmaking level, policy level and law execution level.


Dissertation Keywords/Search Tags:
Intellectual property rights dispute; Alternative Dispute Resolution; Diversified dispute resolution;

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Submission Details: Dissertation Abstract submitted by Li Hua from China on 27-Feb-2012 01:48.
Abstract has been viewed 3259 times (since 7 Mar 2010).

Li Hua Contact Details: Email: cnkilawer680212@gmail.com



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