On The Confirmation System Of Patent

In the era of knowledge-based economy, the importance of intellectual propertyprotection is increasing.China’s intellectual property entity system presents a boomingtrend, but the intellectual property program relief mechanism is relatively backwardand somewhat comes apart with the social demands.The confirmation of patent in ourcountry is "monorail system". Infringement disputes and validity of patent can not beresolved in one proceeding. At the same time, for the consideration of theeffectiveness of the proceedings and the judicial principle of the final judge, mostdeveloped countries select the "dual-track system" to balance the relationship betweenthe executive and judicial in the confirmation of patent system. Academia is lackingof comprehensive and systematic study about this phenomenon. Basing on that, thispaper demonstrated the existing problem of the current confirmation of patent fromthe administrative and judicial judgment of patent validity.And it proposed areasonable solution to improve the situation in our country, while comparing andreferring to the advanced experience of the system in the United States and Japan.First of all, this paper points out that the intangibility of object is just the root ofuncertainty of patent by analyzing the nature of patent. The main function ofIntangible intellectual property is not to secure the right, but to ensure the sustainableprogress of human civilization. We should not simply take intellectual property asproperty rights,the creditor’s right,or other right in between, but should accept it asanother special right which is independent from the property right and creditor’s rightin the regulations of the civil law.Under the concept of the traditional private rights,the understanding of the patent will have practical confusions.The applications,maintenance and implementation of patents are becoming the important work forgovernments around the world while facing industry competitions.And it will hinderthe procedural protection of patent rights if the nature of patent right cannot be fullyrealized.Therefore, to clarify the position and certainty of patents in intellectualproperty rights can pave the way for understanding the particularity of theconfirmation system of patent.Secondly,the confirmation system of patent in our country of adopting the modeof "monorail system", which is the product of the separation of powers,Increasingly,the disadvantage of "monorail system" is prominent.And the so called "circulationlitigation","vexatious suit" is not the product of the invalid procedure in"monorailsystem".The confusion in practice is the blurred understanding of the nature of act ofpatent licensing and confirmation.As a result, this paper has criticized the unreasonable places of traditional point which regards the confirmation of patent asprivate right, and affirmed reasonable ones of the point of administrative review. Afterthe analysis of demonstration, we hold that the so called "vexatious suit" is magnified,and "circulation litigation" is not circulation. The cause of confusing of the "monorailsystem" is a balance and coordination of the three basic relations. In order to solve theproblem of procrastination in judicial remedy under the public-private dual system,Taiwan established the Intellectual Property Court in2008, and shifted to apply"dual-track system" in the confirmation system of patent. Its experience is worthinglearning and referring.Thirdly, as in most countries in the world, the reform in the confirmation systempatent is moving toward the "dual-track system". And establishing a specializedintellectual property court or the court centralized jurisdicton is the externalconditions of innovation."National Intellectual Property Strategy" which enacted in2008pointed out the direction for IPR judicial trial system reformation. Combinedwith China’s national conditions and other countries’or areas’ experience in practice,we have some problems in the system of "Three Traditional Procedures haveconsolidated to One System". But it is premature to establish a specialized IP courts.So the feasible way is to set up the Intellectual Property Court of Appeals at first, andthen gradually transited it to a specialized intellectual property court., of course, weshould considerate the improvement of supporting facilities.To trace to its source, theproblem of "dual-track system" lies on the allocation and balances of executive powerand judicial power. We should explore this problem based on our national conditions,and give play to the role of administrative..For the current reform of "confirmationsystem of patent", the end result is to give the court the power of "tub combinations"to judge the validity of the patent. And the key is to establish a limited judicial reviewmechanism to deal with the problem of delays in the proceedings of patent litigation.Fourthly, although "dual-track system" can elevate the efficiency of theproceedings, and resolve the lengthy of the procedure and other issues, the challengesposed by the "dual-track system" can not be ignored.For example, if an effectiveinformation contact mechanism between administrative and judicial is not established,the inconsistent in the judgment will be emerged at any time. In another example,professionals dealing with technical issues configuration is not good, litigation statusare not clear, and there may exist in name only, they all may affect the judgmentquality of a patent validity.Judging from the comparative law, the practice of the United States and Japan indealing with patent validity worth researching.Under the judicial monism, theconfirmation of U.S. patent system has always been dominated by judicial authority.However, based on the high cost of annulment suit, the United States established the system of unilateral review in1981. A third party can pose to the USPTO to oppugn apatent’s effectiveness. Then established the two sides review system in1999toexpanse the third party’s participation in reexamination proceedings. In2011, theAmerica Invents Act strengthens the patent administrative review system, theconfirmation of U.S. patent system is gradually shifting to the "dual-track system".In the doctrine of function and power of Japan, the confirmation of patent was"monorail system". But it was broken by the case of "kilby"in2000. And then Japanadded the104(3) in the amendment of patent in2004. This article affirmed that judgeshave the power to judge the effectiveness of patent to accelerate the efficiency ofpatent litigation. Also Japan has established an effective communication mechanismin this system to form a "dual-track system". It is worth pondering that United Statesand Japan are the two extreme systems, but both gradually move to the middle toestablish the "dual-track system" to deal with the problem of effectiveness recently. Itshould draw our attention.In addition, it is worth mentioning that the United Stateshas experienced a great change on the effectiveness of the court judgment of patentvalidity.In the case of Triplett v. Lowell, the court established the relative efficiency,but it has been dramatically changed by the case of Blonder-Tongue. And on how tocoordinate relationship between the administrative and judicial, the Ethicon case ofthe U.S. Federal Court of Appeal judgment’s opinion still plays a dominant role. Allof this has considerable inspiration to build the system of the confirmation of patent inour country.In conclusion, this paper has given three paths to improve the confirmation ofChina’s patent system.The first is that we should explore an effective approach fromtheOrigin, to minimize the problem patent is fundamental.while in this point, mostdeveloped countries,focus on improving the quality of patent examination addition tothe adopted "dual-track system" to solve the problem of the patent is invalid.In thisfield, the peer-to-patent in the United States is a very good way to improve the qualityof administrative review.The second is that we should choose the "dual-track system"in the confirmation of patent system.This means that we should give the court thepower to determine the validity of the patent in a patent infringement case. And weshould establish an information liaison mechanism to ensure the coordination in thesystem. Finally, six regional intellectual property Courts of appeals should beorganized by the National People’s Congress or the Supreme Court. And we shouldestablish a specialized Intellectual Property Court of Appeals in Beijing to accept theappealed case which refuses to accept the decisions of industrial property rightsre-examination institutions,such as the patent re-examination board, the trademarkreview and adjudication board, etc.In this way can we unified jurisdiction and trial standards in the Intellectual property litigation, and can we strengthen the trialcapacity of the court, and then can we improve the trial efficiency.