EXCLUSIVE JURISDICTION IN INTELLECTUAL PRPPERTYPDF电子书下载

Chapter Ⅰ:Introduction 1

Ⅰ.Premise 1

1.Exclusive Jurisdiction in Intellectual Property Rights Cases between Public and Private International Law 1

2.What is Included in Exclusive Jurisdiction Rules and what is not.Exclusive Jurisdiction and Subject Matter Jurisdiction 10

3.Peculiarities Related to the Analysis of the Lucasfilm and Gallo Cases,and a Brief Mention of Apple's and Samsung's still Unsettled Patent War around the Globe 16

4.Uniform European Union Patent and Unified Patent Litigation System:Where do we Stand? 19

5.Terminology:Private International Law (PIL);Brussels System;Court of Justice of the European Union (ECJ);Exclusive Jurisdiction;Intellectual Property;Traditional Knowledge (TK),Genetic Resources (GR) and Folklore (F);Intangible Cultural Heritage (ICH);Registered and Unregistered Intellectual Property Rights (IPRs);State Granting an IPR;International Conventions on IP;Four Academic Sets of Principles;International Law Association Committee;the Hague Preliminary Draft;Validity Claims Principally and Incidentally Raised;Infringement Proceedings;Duplicated Proceedings;Misappropriation and Protection;Judgments;Rendering State and Requested Country;Courts 27

6.Internet and Geolocation Tools 40

Ⅱ.Theses Purporting that Comity,The Act of State Doctrine and The Territoriality Principle Establish Implicit Exclusive Jurisdiction Rules 42

7.The US Court of Appeals for the Federal Circuit Voda Judgment and the UK Court of Appeal Lucasfilm Decision 42

8.The ECJ GAT Decision 45

Ⅲ.Exclusive Jurisdiction Rules are not Established either by Comity or by the Act of State Doctrine and the Territoriality Principle,but rather are Contrary to the Public International Law Rules on the Right of Access to Courts 48

9.The Subject Matter and the Plan of this Research:Arguments Against Comity and the Act of State Doctrine,as well as Against the Territoriality Principle.The Human Right of Access to a Court 48

10.Arguments Against the Other Rationales in Support of Exclusive Jurisdiction Rules:Foreign Immovable Property,Local Actions,the Mocambique Rule and Article 22(1) of the Brussels System;Double Actionability Rule;the Sound Administration of Justice and the Judicial Economy;the Best Placed Courts;the Difficulties of Applying Foreign Laws;Non-Recognition and NonEnforcement of Judgments on Foreign IPRs;the Amendment of Registers;Forum Non Conveniens 49

11.Conclusions.Exclusive Jurisdiction Rules Shall be Abandoned in Benefit not only to IPRs Owners,but also to those with the Potential to Infringe IPRs:Referral 50

12.Delimitation of this Research:Overprotection of IPRs;Contracts;General Jurisdiction;Infringement Jurisdiction;Jurisdiction for Provisional Measures;Prorogation of Jurisdiction;Objective or Subjective Consolidation of Claims;Lis Pendens',Arbitrability and Judicial Settlements;Allocation of Jurisdiction in Purely Domestic Cases 50

Chapter Ⅱ:Comparison.Exclusive Jurisdiction Rules do not Express a Customary International Law Rule.The New Trend to Abandon them 55

Ⅰ.Aims,Delimitation and Terminology of the Comparison 55

13.First Aim:Exclusive Jurisdiction Rules are not Expressions of Customary International Law Rule 55

14.Second Aim:Existing Trend in Favour of the Abandoning of Exclusive Jurisdiction Rules 60

15.Delimitation,Plan and Terminology of the Comparison 61

Ⅱ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Unregistered IPRs both with Respect to Infringement Issues and Validity Claims,whether Principally or Incidentally Raised 62

16.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 62

17.The Very Limited Presence of Exclusive Jurisdiction Rules in South Africa and in India 69

Ⅲ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Registered IPRs Pure Infringement Claims,However Raised 69

18.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 69

19.The Very Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India 76

Ⅳ.The Prevailing Absence of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Incidentally Raised 77

20.The Prevailing Absence of Exclusive Jurisdiction Rules in International Instruments and the Mitigation of the Scope of the Exclusive Jurisdiction Rules of the EU/EFTA Brussels System 77

21.The Prevailing Absence of Exclusive Jurisdiction Rules in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 87

22.The Presence of Exclusive Jurisdiction Rules in the Brussels System,albeit with Mitigated Scope.The Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India 89

Ⅴ.The Emerging Rejection of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Principally Raised 90

23.The Emerging Rejection of Exclusive Jurisdiction Rules 90

24.The Exclusive Jurisdiction Rules in EU/EFTA Norms as well as in the National Statutory or Case-law Rules 96

Ⅵ.Conclusions 97

25.The Exclusive Jurisdiction Rules Related to Unregistered IPRs Pure Infringement Claims and Validity Claims however Raised,as well as Registered IPRs Pure Infringement Claims and Validity Claims Incidentally Raised,are not an Expression of a Customary International Law Rule 97

26.The Exclusive Jurisdiction Rules related to Registered IPRs Validity Issues Principally Raised are not an Expression of Customary Law 98

Chapter Ⅲ:The Act of State Doctrine and Comity do not Mandate Exclusive Jurisdiction Rules 100

Ⅰ.Introduction 100

27.Reasons for Addressing the Act of State Doctrine and Comity in this Same Chapter 100

28.Reasons for Primarily addressing Common Law Jurisprudence 101

29.The Act of State and Comity Doctrines as "Suggested" by Public International Law 102

Ⅱ.Theses According to which the Act of State Doctrine Implicitly Poses Exclusive Jurisdiction Rules 102

30.Theses According to which the Act of State Doctrine Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the ECJ GAT Decisions 102

31.Other Relevant Judgments 104

32.The Inapplicability of the Act of State to Unregistered IPRs 107

Ⅲ.The Act of State Doctrine Does not Pose Exclusive Jurisdiction Rules 108

33.The Act of State Doctrine Does not Prevent Courts from Adjudicating Foreign Acts of States 108

34.IPRs are not an Expression of the Sovereignty of Foreign Governments 114

35.Relevant Judgments 117

Ⅳ.Theses According to which Comity Implicitly Poses Exclusive Jurisdiction Rules 120

36.Theses According to which Comity Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the UK Court of Appeal's Lucasfilm Judgments 120

37.Other Relevant Judgments 123

38.The Applicability of Comity to Unregistered IPRs 126

Ⅴ.Comity does not pose Exclusive Jurisdiction Rules 128

39.Assuming Jurisdiction over Foreign IPRs Claims is Imposed by Public International Law,Referral 128

40.Assuming Jurisdiction over Foreign IPRs Claims does not Prejudice the Rights of Foreign Governments 129

41.Assuming Jurisdiction over Foreign IPRs Claims Corresponds to the Citizens' Interests 131

Ⅵ.The Act of State Doctrine and Comity are Contrary to Public International Law 132

42.The Act of State and Comity are not Suggested by Public International Law 132

43.The Act of State and Comity are even Contrary to the Public International Law Rules on the Avoidance of a Denial of Justice and on the Right of Access to a Court 135

Chapter Ⅳ:The Territoriality Principle does not Mandate Exclusive Jurisdiction Rules 137

Ⅰ.Territoriality and Universality 137

44.Territoriality and Universality in Public International Law 137

45.Territoriality and Universality in Relation to IPRs 138

Ⅱ.Territorial and Universal IPRs Protection Outside the IP Systems 148

46.The Territoriality Principle as an Obstacle to the Universal Protection of IPRs.Thesis Proposing to Achieve that Universal Protection throughout International Legal Systems other than that which is Established for IP.The Relevance of these Theses for Present Purposes 148

47.Crimes of Piracy,Cyberattacks and Biopiracy 150

48.Human Rights to Intellectual Property 153

49.UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 158

Ⅲ.Territorial and Universal IPRs Protection Inside the IP Systems 160

50.Theses According to which the Territoriality Principle Establishes Implicit Exclusive Jurisdiction Rules:the Voda,the UK Court of Appeal's Lucasfilm and the Gallo Judgments,Referral 160

51.The Territoriality Principle in the CUP,CUB,and TRIPs Agreement does not Pose Exclusive Jurisdiction Rules 161

52.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Poses Exclusive Jurisdiction Rules 161

53.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Impedes the Courts Seised from Adopting PIL Rules 170

54.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has only a Substantive Nature 172

55.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has a PIL Nature and Always Prescribes the Application of the Lex Loci Protections 173

56.The Territoriality Principle in other Relevant Norms Expressly Shaped as PIL Rules 176

57.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement does not Impose the Application of a Foreign Law 178

58.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement has only a Substantive Nature 179

Ⅳ.Thesis Here Purported:the Territoriality Principle as an Expression of the Proximity Principle 180

59.Opinions Already Emphasizing the Connection between the Territoriality Principle and Proximity Reasons in IPRs Cases 180

60.Lagarde's Thesis on the Proximity Principle 182

61.Extension to IPRs of Lagarde's Thesis on the Proximity Principle 186

62.First Group of PIL Provisions Deviating from the Territoriality Princile:Rules that Adopt Jurisdiction Criteria which are not Based on the Territoriality Principle 188

63.Second Group of PIL Provisions Deviating from the Territoriality Principle:Rules that Adopt Connecting Factors which are not Based on the Territoriality Principle 199

64.Third Group of PIL Provisions Deviating from the Territoriality Principle:Rules Allowing Recognition and Enforcement of Foreign Judgments Rendered by Courts of States other than the IPRs Granting Countries 204

Ⅴ.Conclusions 204

65.Overcoming the Exclusive Jurisdiction,the Exclusive Designation of the Lex Loci Protectionis and the Impossibility of Recognising and Enforcing Foreign Judgments Rendered by Courts other than the Ones having Exclusive Jurisdiction or According to a Law other than the Lex Loci Protectionis 204

Chapter Ⅴ:Other Arguments are Insufficient to Mandate Exclusive Jurisdiction Rules 206

66.Introduction 206

67.Foreign Immovable Property,Local Actions,the Mocambique rule and Article 22(1) of the Brussels System 207

68.Double Actionability Rule 212

69.Sound Administration of Justice and the Judicial Economy 215

70.Best Placed Courts 215

71.Difficulties and Costs of Applying Foreign Laws 216

72.Recognition and Enforcement of Judgments on Foreign IPRs:Voluntary Compliance and Vicious Circle 218

73.Recognition and Enforcement of Judgments on Foreign IPRs:Public Policy Exception and International Mandatory Rules of the Country that Granted the Right 221

74.Recognition and Enforcement of Judgments on Foreign IPRs:already Existing Rules and Tendency in Favor of Recognition and Enforcement,Issue Preclusion and Res Judicata 231

75.Amendment of Registers 235

76.Forum Non Conveniens and Special Circumstances Test 238

Chapter Ⅵ:Exclusive Jurisdiction Rules Imply a Denial of Justice and Violate the Fundamental Human Right of Access to Courts 245

Ⅰ.Introduction 245

77.Premise 245

78.Denial of Justice 245

79.Forum Necessitatis 247

80.Hierarchy of the Sources of Law 256

81.Forum Necessitatis in the EU Brussels System 258

82.Exclusive Jurisdiction in the EU Brussels System 263

Ⅱ.The Fundamental Human Right of Access to Courts 264

83.Origin and Nature 264

84.Characterisation 267

85.Civil Proceedings 268

86.Restrictions of the Right of Access to Courts 269

87.Restrictions Imposed by International Jurisdiction Rules 271

88.Alternative Means of Recourse in the Forum State rather than in Third States 276

89.Exclusive Jurisdiction Rules and the Right of Access to the Court 280

Ⅲ.Exclusive Jurisdiction Rules are Contrary to the Public International Law Rules on the Denial of Justice and on the Fundamental Human Right of Access to Courts 281

90.Exclusive Jurisdiction Rules and Denial of Justice 281

91.Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts 286

92.Solutions of a PIL and Human Rights Nature 287

93.Analogy of the Conclusions Regarding the Relation between the Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts to the Conclusions Regarding the Relation between the same Exclusive Jurisdiction Rules and the Denial of Justice/Forum Necessitatis Rules 290

Ⅳ.Declining of Jurisdiction and International Responsibility 290

94.Remedies for Denial of Justice 290

95.Remedies for Violation of the Fundamental Human Right of Access to Courts 292

Chapter Ⅶ:General Conclusions 295

96.Conclusions 295

97.EU IPRs and European Unified Patent Judiciary 298

98.Preventing Economic Inequalities in Litigation in Favour not only of the IPRs Owners but of those with the Potential to Infringe IPRs as well 299

99.Forum Shopping 300

Bibliography 303

Tables of Cases 330

Table of Treaties,Conventions and Other Instruments 336

Index 339