Infringement of intellectual property rights is generally considered to include infringement of copyright, trademark rights, patent rights, trade secret rights, anti-unfair competition rights and other intellectual property rights. Compared with civil law, intellectual property law belongs to special law.

The civil law generally stipulates the standards or conditions for the identification of infringements, and the intellectual property laws more specifically stipulate the manifestations of intellectual property infringements. We must not only grasp the manifestations and identification standards of infringement as a whole based on civil and commercial law and tort law, but also specifically grasp the specifications and key points for identifying each type of intellectual property infringement in accordance with various intellectual property laws in order to complete the work. The task of adjudicating the application of law in cases involving intellectual property infringement disputes. Through research on various intellectual property laws such as patent law, trademark law, and copyright law, we will find that legislators generally clearly stipulate the corresponding types and specific forms of infringement in these laws. Although there are also so-called flexible provisions in these provisions, in general, intellectual property laws have enumerated descriptions of infringements and various normative provisions on infringements, which also constitutes the determination of intellectual property rights. Legal standards for torts. Therefore, when we study the identification of infringement, we must first study and discuss the legal standards for identifying intellectual property infringement. In the current intellectual property law, there are four ways to express the provisions of intellectual property infringement: one is to clearly stipulate in the legal liability chapter of the corresponding law, after the same article stipulates civil and other legal liabilities, and then lists them one by one. Infringements that should be investigated for civil liability, such as copyright law and computer software protection regulations. The second type of provision is in the chapter on intellectual property protection. There is a special article that stipulates infringement acts, and another special article that stipulates the legal liability for these acts, such as trademark law.

The third type is that the general provisions of the law stipulate that infringement of patent rights is prohibited by law, while a special article in the chapter on rights protection lists behaviors that are not considered infringement of patent rights and are not The act of assuming liability for compensation [6], and the legal liability that should be pursued is stipulated in this chapter, such as the Patent Law [7]. The fourth type is a special chapter that stipulates infringement or illegal activities, and a special chapter that stipulates the legal responsibilities that should be investigated, such as the Anti-Unfair Competition Law [8]. To sum up, intellectual property laws generally stipulate the content of corresponding intellectual property rights, enumerate and stipulate infringements, exclusions and restrictions, as well as the legal responsibilities that should be borne. Legal liabilities are generally civil legal liabilities and administrative legal liabilities. Therefore, when we identify intellectual property infringements, we must pay attention to all the legal facts required by intellectual property laws to determine the facts of infringement, that is, the legal fact system necessary for infringement. Avoid any one-sided and subjective view of the problem. This is especially important for judges trying cases. Generally speaking, the rights conferred by the law refer to the standard of behavior that the right holder takes to satisfy his interests and is guaranteed by the legal obligations of others, that is, the standard of behavior that the law allows. It usually consists of positive behavioral rights, request rights (negative behavioral rights) and rights to request state protection [9]. These three parts of the rights structure can exist independently, but they are also inseparable, and they are in an inseparable unity. It should be said that the law first affirms the right of the parties to perform positive actions, which is at the center of the rights structure; at the same time, its realization depends on the obligor's performance of obligations and state protection when the obligations are not performed. In the field of intellectual property law, the above-mentioned forms of expression of corresponding intellectual property rights granted to parties by national laws are particularly obvious.

When intellectual property laws grant rights to the parties, they generally clearly stipulate the positive rights of the right holder and the scope of various powers of such rights. At the same time, due to the intangible property nature of intellectual property, the law gives each right a clear scope of protection at the center of its various powers. The scope of protection is obviously different from the scope of various powers because of its technical and professional nature. For example, the invention patent right protects an invention technical solution that meets the patent conditions; the claims of the patent specify the exact scope of the technical solution protected by law. Another example is a registered trademark right. What the Trademark Law protects is the graphics or text that meet the trademark conditions for which the right holder applies for trademark registration, or their combination. In the protection of copyright, the scope of protection is concentrated on works that meet the conditions of works. The scope of protection of trade secrets lies in technical solutions or technical know-how that meet the conditions of trade secrets, as well as other business information. The key is how to distinguish them from publicly known technologies.

When determining an intellectual property infringement, the first thing to do is to determine the scope of legal protection of the intellectual property allegedly infringed; after the scope is determined, the scope of each power of the right can be analyzed. Just as some scholars said when analyzing the determination of patent infringement, "A product will not infringe another product, it will infringe a patent claim; therefore, to identify infringement matters, you must first determine the right to claim. Scope of the claims. ”

This scope of protection is obviously different from the protection of property rights. It is the starting point for the determination of intellectual property infringement, and it is also one of the difficulties in determining intellectual property infringement. In the practice of intellectual property trials, some cases are difficult to handle, and many first have difficulty in determining the scope of rights protection. Generally speaking, the determination of various types of intellectual property infringements has a roughly the same determination process. Judges generally follow this process or ideas to make an objective judgment on whether the behavior to be determined is an infringement in a detailed and rigorous manner. . This determination process incorporates the judge's subjective will into a relatively fixed thinking mode, facilitates the judge's understanding into a visible and easy-to-operate process, and ensures that the judge's inner conviction is more in line with objective reality and more objectively realistic. Although the identification of various types of intellectual property infringements has its own characteristics, their uniqueness determines the basic steps of the identification process: the first step is to determine the scope of rights and protection;

The second step , analyze the components of its scope of protection;

The third step is to propose and determine the scope of realization of rights for the alleged infringement;

The fourth step is to analyze the composition of the scope of realization of rights. Elements;

The fifth step is to compare the determined scope and specific constituent elements of the two, and accurately apply various judgment principles and methods; the sixth step is to judge the identity or similarity;

The seventh step is to decide whether to find infringement or not. Although the above-mentioned determination process has slightly different forms and focuses in various types of intellectual property infringement judgments, the basic ideas and judgment processes for forming the judge's evidence are consistent. Evidence plays a decisive role in the determination of intellectual property infringement, and in many cases, it plays a decisive role. The admission of evidence and the sharing of the burden of proof have made the already complex determination of infringement even more complicated. This paper only wants to draw the reader's attention to the issue of evidence and does not want to elaborate on it here. my country’s Anti-Unfair Competition Law includes the infringement of trade secrets. Since trade secrets are an independent type of right and other unfair competition behaviors related to intellectual property rights are different from it, they will be discussed separately in this article.

See pages 309-311 of "Civil Law and Tort Law" edited by Wang Liming. [3] For example, Article 45, Item 8 of the Copyright Law of the People’s Republic of China, “Other acts that infringe copyrights and copyright-related rights and interests”; and also as the Trademark Law of the People’s Republic of China The provisions of Article 38, Paragraph 4 of the Law of the People's Republic of China on "causing other damage to the exclusive right to use registered trademarks of others", etc. In addition, it is generally believed that in addition to the acts stipulated in the Anti-Unfair Competition Law, other acts that violate the principle of good faith and good faith in the General Principles of Civil Law are also deemed to be acts of unfair competition.

In Chapter 5 of the Copyright Law, Legal Liability, Articles 45 and 46 first stipulate the civil liability and administrative liability that should be borne, and then list the corresponding eight and seven types of infringement. Behavior. Article 30 of the Computer Software Protection Regulations first stipulates the civil and administrative liabilities that should be borne, and then lists eight types of infringements. [5] Article 38 of the Trademark Law stipulates the infringement of registered trademark rights, Article 39 stipulates the civil and administrative legal responsibilities that shall be borne, and Article 40 stipulates the criminal offenses involving the crime of counterfeiting registered trademarks. Legal liability. See the second paragraph of Article 63 of the newly revised Patent Law. [7] Chapter 1, General Provisions, Article 11 of the Patent Law stipulates that no civil subject may commit acts without the permission of the patentee. Chapter 7, Protection of Patent Rights, Article 62, stipulates that acts that are not deemed to be infringements circumstances, Article 60 stipulates the legal liability for infringement. Chapter 2 of the Anti-Unfair Competition Law provides a special chapter on unfair competition behaviors, and Chapter 4 Legal Liability stipulates the legal liability for unfair competition behaviors.