共有知识产权的权利行使规则研究

发布时间：2018-05-08 15:38

本文选题：共有知识产权 + 权利行使规则的确定原则　；参考：《湘潭大学》2017年硕士论文

【摘要】：共有知识产权是指两个或两个以上民事主体基于法定或约定的关系对同一对象依据法律规定所享有权利的共有。共有知识产权可以基于两个或两个以上民事主体共同创作作品、对同一商标提出共同申请、共同研发技术方案后共同申请专利、通过受让、遗赠、继承和承继同一知识产权等以及约定对同一知识产权共有而产生。由于知识产权对象的无体性以及公共利益性等特性,共有物权权利行使规则难以直接适用。基于共有知识产权的多主体性、权利的单一性等特性,并结合知识产权本身所固有的特性,共有知识产权的行使规则应遵循的原则有:约定优先、约定受限、法定补充以及防止权利冲突等四个原则。我国现行知识产权立法中,对共有知识产权的行使规则的规定,存在不契合共有知识产权行使规则的确定原则,应该以共有知识产权的确定原则为基准改进具体的共有知识产权的权利行使规则。由于专利、商标与著作权等权利的知识产权共性,应该将该三种知识产权的共有权利行使规则统一调整为:约定优先,但共有商标权利行使的约定,不得导致消费者混淆;没有约定或约定不明时,共有人都有权自己行使权利与普通许可他人行使权利,普通许可他人行使权利所获得利益应该与其他共有人分配,分配按照共有人对知识产权的各自份额进行分配,无法确定共有份额的,平均分配。共有知识产权转让、独占许可与排他许可需要共有人协商一致予以决定,协商不成按照共有份额表决决定,没有共有份额的约定,又不能协商一致的,共有人不得对转让共有的知识产权、对共有的知识产权进行独占许可与排他许可;共有人转让其共有份额的,其他共有人在同等条件下,享有优先权。共有人欲放弃权利的经通知其他共有人后即可,其所放弃的权益份额由其他共有人按其所占的权益份额分享,如未约定权益份额的由其他共有人平均享有。共有知识产权受到任何侵害时,各共有人均有权单独提起诉讼,对于诉讼所获赔偿金,扣除诉讼成本后的可分配金额在各共有人之间按照各自享有的份额进行分配,如各共有人未约定各自所享有的份额,则在各共有人之间进行均等分配。共有人可放弃追责权利,放弃追责权利的共有人无权参与该次侵权诉讼获得的赔偿金的分配。为此,我国《专利法》、《商标法》与《著作权法》相关制度进行相应的调整。
[Abstract]:Joint intellectual property rights refer to two or more civil subjects based on the legal or agreed relationship with the same object according to the legal provisions of the rights shared. A joint intellectual property right may be based on the joint creation of a work by two or more civil subjects, a joint application for the same trademark, a joint application for a patent after joint research and development of a technical scheme, and a joint application for a legacy through transfer, Inheritance and inheritance of the same intellectual property, etc., and the agreement to share the same intellectual property. Due to the characteristics of the object of intellectual property and public interest, it is difficult to directly apply the rules of exercise of common real right. Based on the characteristics of common intellectual property rights such as multi-subjectivity, singularity of rights, and combining the inherent characteristics of intellectual property rights, the rules governing the exercise of joint intellectual property rights should follow the following principles: agreement first, agreement limited, and so on. Legal supplement and prevention of conflict of rights four principles. In the current intellectual property legislation of our country, the rules for the exercise of joint intellectual property rights are not in accordance with the rules for the exercise of joint intellectual property rights. Specific rules for the exercise of joint intellectual property rights should be improved on the basis of the principle of the determination of joint intellectual property rights. Due to the common intellectual property rights of patent, trademark and copyright, the rules of exercise of common rights of these three kinds of intellectual property rights should be unified and adjusted as follows: agreement takes precedence, but the agreement on the exercise of common trademark rights should not lead to confusion among consumers; If there is no agreement or the agreement is unclear, the joint owners shall have the right to exercise their own rights and those of others to exercise their rights, and the benefits derived from the exercise of the rights by the ordinary licensees shall be distributed among the other co-owners, The distribution shall be according to the respective shares of the joint owners of intellectual property rights, and shall be equally distributed if there is no way to determine the common share. Where a joint intellectual property right is transferred, the exclusive license and exclusive license shall be decided by consensus by the co-owner, and no decision shall be reached through consultation in accordance with the common share, and there shall be no agreement on the common share, and there shall be no consensus through consensus, A joint owner may not license or license exclusive ownership of a joint intellectual property right; if a joint owner transfers its common share, the other joint owners shall enjoy priority under the same conditions. If a joint owner wishes to waive his rights, he may, after notice to the other joint owners, share the shares of the rights renounced by the other joint owners according to their share of the rights and interests, such as those which are not agreed upon by the other joint owners. In the event of any infringement of joint intellectual property rights, each joint owner shall have the right to initiate a separate action, and the distributable amount after deducting the costs of litigation shall be distributed among the co-owners according to their respective shares of the compensation received in the proceedings, If the co-owners do not agree on their respective shares, they are equally distributed among the co-owners. The joint owner may waive the right to pursue liability, and the joint owner who waives the right of liability has no right to participate in the distribution of compensation obtained in the tort lawsuit. Therefore, the relevant systems of Patent Law, Trademark Law and copyright Law in China are adjusted accordingly.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.4

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