专利侵权不停止理论新解及立法完善.pdfVIP

——基于当事人之间的利益衡量 Abstract:Permitting non-cessation of patent infringement, which is based on the balance of interests between the parties, is the necessary adjustment of the strong protection for patent right under the condition of modern science and techology innovation. Existing researches seek legitimate explanation to it more beyond traditional civil law and patent law theories and thus have some defects.In light of the essential similarities between non-cessation of patent infringement and accession rules, it is feasible and rational to use accession theory to explain non-cessation of patent infringement. According to this, the rationality of non-cessation of patent infringement is to achieve the public policy which aims at stimulating creation and to preserving economic value, and the purpose of applying obligation relief as the substitute is to compensate the legitimate loss of the patentee. To take account of the general theory of patent restriction and the current situation of our civil legislation, and to provide judicial basis, we should establish the situations of non-cessation of patent infringement and the applying rules of alternative relief. Key Words: patent law; cessation of infringements; non-cessation of infringement; accession; alternative relief 注了基于公共利益考虑而不使专利侵权