The Necessity of Introducing Intellectual Property Laches Defense and the Construction of Its Rule
In a case of intellectual property infringement,if the rights holder neglects to safeguard his rights,can the accused infringer be allowed to raise a laches defense?The Su-preme People's Court of China once gave a positive answer to this question in a judicial guid-ance opinion in 2009.However,this opinion is not a judicial interpretation and therefore has no mandatory effect.Many courts in China refuse to apply this rule.This has led to a large contro-versy in China on this issue,which should be clarified.Tracing back to the cause of this dis-pute,the core reason is that different courts have different opinions on whether the right holder's negligence will generate reliance interests.It is necessary to give a positive response to this issue and confirm that China needs to introduce the laches defense rule in the field of intel-lectual property rights.First,the long-term laches of the right holder will generate a reasonable trust on the part of the counterparty that the right holder will no longer exercise the right.Under the principle of good faith,such reliance interest should be recognized and protected.Second,the laches of the right holder may lead to an imbalance of interests between the intellectual prop-erty owner and the counterparty.Therefore,the behavior of the right holder should be restrict-ed.Third,the exercise of a right itself needs to be limited in time.Long-term inaction in safe-guarding rights will affect the stability of the legal order and should not be supported by law.Fourth,objects of intellectual property rights are different from tangible objects in that they will profoundly affect the public interest.From the perspective of public interest,long-term non-ex-ercise of rights will cause waste of resources and therefore must be restricted.On this basis,it is necessary to consider constructing the rule on the laches defense of intellectual property rights in China.It should also be noted that the provisions on this rule in the judicial guidance opinion of the Supreme People's Court are relatively vague,thus causing disputes over its application by courts.Therefore,the rule should be reconstructed.Moreover,since judicial guidance opin-ion is not mandatory in China,it is necessary to build a laches defense rule on the basis of judi-cial interpretation or even written law in the future.In the specific design of the rule,we can start from the following points:firstly,in terms of applicable conditions,China can introduce the time elements,condition elements,and trust elements from German rule of forfeiture of rights to ameliorate the existing rule.Secondly,in terms of applicable objects,China should al-low the defense of laches to counter the claim to stop infringement and the right to claim dama-ges derived from intellectual property rights,and exclude claims derived from moral rights.Fi-nally,China should make appropriate restrictive provisions on the rule to avoid damage to the public interest and prevent excessive damage to the private interests of the right holder.
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