AIn the country of statutory law, China’s statutes are the basis of intellectual property (IP) judicial practice. However, the statutes cannot cover the specific circumstances of all cases. In practice, legal analysis and logic are also required to promote application of the law in their absence. This article explains the important role of legal analysis and logic in practical strategy of intellectual property cases.
In many cases, the plaintiff and defendant offer their own justifications in their statements. At first glance, it is difficult to judge whether they are right or wrong. Based on the facts and causes of the case, and by combining the evidence with legal logic, the judge distinguishes and analyzes the right to clarify the facts of the case and application of the law. Specific application of legal analysis and logic can be reflected in different aspects. Regarding the promotion of intellectual property strategy, the following aspects deserve attention.
(1) Make a targeted claim. In complex IP infringement cases, the infringer may simultaneously infringe two or more rights of the rights holder, such as patent, copyright, domain name and business name. However, it is sometimes impossible to raise all the rights in the same case as the basis of the claim.
Therefore, it is necessary to consider a claim through legal analysis and logic in combination with the case situation and practice of the court that accepts the case. For example, among these rights bases it is necessary to identify which are more stable, and which are suitable to be claimed together or separately.
In addition, when the evidence of loss to the rights holder or gain to the infringer resulting from infringement is difficult to obtain, it is necessary to make a comprehensive analysis of the issue of compensation amount which is common in litigation requests.
This can be achieved by combining the extent and influence of wrongdoing and malice of the wrongdoer in the evidence, as well as legal precedents of the court, to determine a relatively accurate claim for the statutory compensation, preventing a situation where the compensation is too low to make up for the loss, or too high to cause hefty litigation costs.
In these circumstances it is impossible to find ready-made answers from the legal provisions. But it is possible to make a relatively accurate claim by analyzing with legal logic, based on the collection of sufficient information, to avoid loss in case strategy.
(2) Predict cases accurately. In addition to making targeted claims, legal analysis and logic also facilitate more accurate prediction of the trend and outcome of a case.
In a relatively complicated case, both the plaintiff and the defendant may present new evidence or claims during the course of litigation, or there may be other related cases being tried simultaneously in other courts, making the case trend unclear.
Again, it is necessary to apply legal logic to analyze and assess new situations and then determine whether the previous strategy should be adjusted. Although the outcome of a complex case is uncertain, legal logic and analysis, based on information and experience, in most cases may facilitate an accurate prediction of the trend of cases and support the adjustment of case strategies.
(3) Eliminate unfavorable options. It is difficult in some cases to immediately determine whether the new situation is beneficial, especially when both favorable and unfavorable factors coexist in the evidence. However, judging by the results of actions makes it relatively clear and easy to determine what could be detrimental to your side. And applying legal logic and analysis to first eliminate possible unfavorable options is also a way to avoid losses and steer the case in a relatively favorable direction.
(4) Make a backup plan. Of course, when the case situation and evidence are unfavorable, and strategy adjustment can hardly make a difference, it is necessary to use legal logic to analyze the possible situation and make a more favorable backup plan.
(5) Other application scenarios. There are many other application scenarios of legal logic, such as cases with no precedent as reference, or categories not clearly defined by law. In some cases, it is also necessary to use legal logic to assess the litigation goal of the other party and the legitimacy of the case procedure.
For example, the defendant may have to adopt completely different ways of dealing with the plaintiff’s two different litigation goals focused on obtaining compensation or a favorable judgment. In addition, it is also necessary to carefully analyze and assess whether problems encountered in the proceedings may affect the exercise of customer rights, and then decide the appropriate response.
To apply legal logic accurately and reasonably, first respects the legal spirit of fairness and justice, and takes into account the interests of both parties. Only from a relatively neutral point of view, rather than just from one’s own side, can legal logic be used to make judgments more accurate.
Of course, the application of legal logic cannot ignore the benefit of rich experience. Legal logic is best applied through familiarity with the types of intellectual property cases and awareness accumulated through long-term practice.
To summarize, legal logic actually exists at all stages of intellectual property law practice and is reflected in all aspects of a case. Only by relying on the spirit of the law, standing up for fairness and justice, backed by rich experience, can it play a good supporting role in intellectual property strategy.
Frank Liu is a partner at Shanghai Pacific Legal
Room 2709, 27/F, Plaza 66 II
1266 Nanjing Road West
Shanghai 200040, China
Tel: +86 21 6086 0199
Fax: +86 21 6086 0111