Dr. Jiang zhipei: Thus resolving these disputes in a timely, speedy and fair man学界动态

时间:2018-04-04   出处:和记娱乐司法保护网  作者:蒋志培  点击:


Dr. Jiang: SEP- Possibility of International Arbitration

With regard to intellectual property rights disputes concerning the standard-essential patents, there is more international elements involved, the number of disputes have increased, and it implication on the fair markets competition is also getting greater. Thus resolving these disputes in a timely, speedy and fair manner is undoubtedly of great significance to economic development.  
However,  most of these disputes are tried by the local court that has competent jurisdictions. For instance, two well-known cases involving China parties indicates the same, i.e. Huawei v IDC were tried by Shenzhen Intermediate Court and subsequently appealed to Guangdong Provincial High Court, and Huawei v ZTE was tried by a German Court and subsequently transferred to a EU Court.  Of course the judges did a good job. The two cases were beautifully handled.
In recent years, China has emphasized two judicial policies. One is the protection of intellectual property rights is be led by the judicial protection, and the other is the emphasizing the alternative dispute resolution mechanisms including arbitration. The former is attributed to the comprehensive protection and strength. The latter is due to the high pressure on the number of disputes in the court, and thus the parties tend to explore the other alternative dispute resolution mechanisms.
However the blockage of resolving the standard-essential patents disputes through international arbitration lies in the facts that there has to be an arbitration agreement between the parties, before the arbitration tribunal can admitted such a case. 
For the parties to enter into an arbitration agreement, the arbitration has to be attractive to the parties, for instance it must be supported by the valid arbitration system, relevant international treaties, specialties arbitrators, and professional arbitration institutions. The above characteristics may make the parties to believe that this kind of arbitration is reliable and convenient. It is recommended that the international arbitration for standard-essential patents shall consider using of big data and advanced technology from the very beginning. It may try to have the massive, trivial and basic works, including the training of arbitrators, to be done by the artificial intelligence. It may even try to have the first draft of the arbitration award be automatically generated based on the information the arbitrator's puts into the system. This is of course going to take a while to develop.



华为 v IDC  深圳中院---广东省高级法院

华为 v 中兴 德国法院---欧盟法院 当然,法官们做了出色的工作,这两个案件结果都引人注目。







蒋志培 中国人民大学法学博士,曾在英国伯明翰大学法学院、美国约翰马歇尔法学院任高级访问学者,中国人民大学法学院、北京外国语大学法学院兼职教授,中国和记娱乐司法保护网主编、国家社科基金评审委员会专家,最高人民检察院民行诉讼监督案件专家委员会委员,2014年、2015年受美国约翰马歇尔法学院、中国驻加拿大使馆和加方科技部邀请参加和记娱乐法律和创新论坛并演讲,2013年12月获得中国版权事业卓越成就奖。