Applying legal analysis and logic in IP strategies

By Frank Liu, Shanghai Pacific Legal
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As a statutory law country, China’s statutes are the basis of judicial practice of intellectual property (IP). However, the statutes can’t 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 the practical strategy of intellectual property cases.

Frank Liu, Shanghai Pacific Legal
Frank Liu
Shanghai Pacific Legal

In many cases, the claimant and defendant present their own justifications in their statements. At first sight, it is difficult to judge whether they are right or wrong. Based on the facts and causes of the case, and combining the evidence with legal logic, the judge distinguishes and analyses the law 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. As for promoting intellectual property strategy, the following aspects deserve attention.

(1) Make a targeted claim. In complicated IP infringement cases, the infringer may simultaneously infringe on 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 accepting 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 profit to the infringer arising from infringement is difficult to obtain, it is necessary to make a comprehensive analysis of the issue of compensation amount commonly found in litigation requests.

This can be achieved by combining the scale and influence of infringement and malice of the infringer in the evidence, as well as legal precedents of the court, to determine a relatively accurate claim for the statutory compensation, forestalling a situation that 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 analysing with legal logic, based on collecting 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 claimant and defendant may present new evidence or claims in the course of litigation, or there may be other related cases being tried in other courts simultaneously, making the case trend unclear.

Again, it is necessary to apply legal logic to analyse and judge new situations and then determine whether to adjust the previous strategy. Although the outcome of a complicated case is uncertain, in most cases legal logic and analysis, based on information and experience, will possibly facilitate an accurate prediction of the trend of cases and support the adjustment of case strategies.

(3) Eliminate unfavourable options. It is difficult in some cases to tell immediately whether the new situation is beneficial, especially when both favourable and unfavourable factors coexist in the evidence. However, judging from the results of actions makes it relatively clear and easy to determine what may be detrimental to your side. And applying legal logic and analysis to first eliminate possible unfavourable options is also a way to avoid losses and steer the case in a relatively favourable direction.

(4) Make a backup plan. Of course, when the case situation and evidence are unfavourable, and strategy adjustment can hardly make a difference, it is necessary to use legal logic to analyse the possible situation and make a more favourable backup plan.

(5) Other application scenarios. There are many other application scenarios of legal logic, such as cases with no precedent as a reference, or categories not clearly defined by law. In some cases, it is also necessary to use legal logic to judge the litigation purpose of the other party and the legitimacy of the case procedure.

For example, the defendant may need to adopt completely different ways to deal with the claimant’s two different litigation purposes focused on obtaining compensation or a favourable judgment. In addition, it is also necessary to carefully analyse and judge whether problems encountered in the proceedings may affect the exercise of a client’s rights, and then decide the appropriate response.

To accurately and reasonably apply legal logic, first respect the legal spirit of fairness and justice, and consider 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 accurately.

Of course, applying 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 sum up, legal logic actually exists in all stages of intellectual property judicial 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 up 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

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