| Establishing efficient patent right verification system nowadays is of great significance to guarantee the implement of our innovation-drivenstrategy, the national intellectual property strategy, and to build an innovative country. However, the poor perform ance and problems which the existing patent right verification system presents has not only caused the imbalance between the patentee and the social public interests by invisibly increasing the operation cost of patent system, but also has bad ef fects on innovation incentive and isn’t conducive to the production and distribution of innovative technology. Therefore, changing and improving this verification system has becom e an im portant subject among all previous revisions of the patent law. In the second and third revision of the patent law, the relevant refining program s were not be adopted finally by lawmakers, and further reformation scheme could not be found in the fourth revis ion draft. It seems that the verification system of Chinese patent right has gone into the “knot”. One im portant reason which led to this situ ation is that the ethics and operability about these relevant reform ation schemes haven’t been given enough historical study and systematic argument, and it also provides ways and angles for the article.This paper is consisted of five chapters except introduction and conclusion, in total of more than 20,0000 words.The first chapter defines the concept, specifi city, legislation model of the patent right verification system, and its legal function and value in view of necess ity. There are bro ad sense and narrow sense about the concept of the patent right verification system in the field. The broad sense includes the verification right be fore and after patent application is granted, while the narrow sense only refers to the rights after granted. This article limits on the narrow sense, which m ainly focus on administrative ve rification system and subsequent judicial review system, judicial approval system and specific rules and procedures. Compared to other civil rights’ verification, the spec ificity for patent right verification is tha t it shall h ave decisive influence on the rights’ legal force. Due to m any factors, the legislation mode about the patent right verification system in countries and regions’ different periods presents som e specific time features. Separate setting mode and parallel setting mode have different features and operation ef fects in power allocation, pro cedure setting and distribution of rights and obligation. The realization of legal function a nd value is such a necessity standard that measures whether the patent righ t verification system is scien tific and reasonable, also it provides some legal ideas that its reform and adjustm ent should follow. The patent right verification system shall achieve its theoretical legal function in such aspects as guaranteeing the realization of system design, preserv ing the justice sp ace in public technolo gy field, solving patent right verificati on disputes quickly, maintaining reasonable boundary of patent right, correcting flaws during patent examination. As for the legal value of system realization, fair, justice and benefit value shall not be neglected. At the legal value level, benefit value has its priority because of the specialty of patent right, the provoking contradiction of the existing system and its trend.Chapter two mainly analyzes the problems which the patent right verification system in China causes when operating. Viewing from the historical changes since the foundation of P. R. C, influenced by the separate d dualistic system between patent infringement and affirmed rights in civil law system, international harmonization on patent law and TRIPS Agreem ent, our formation system of patent right adopts se parate setting m ode in legislation, that is administrative verification system. Its operatio n mainly went through three stages which included coexist mode of objection before aut horization and invalidity declaration, coexisted withdrawal of patent and invalidity declar ation, and single m ode of patent invalidity declaration. Its subsequent judicial review also experienced two stages, which reviewed only the closure and invalidation of patent for invention, and reviewed all three patents’ invalidation. There appear many problems in the operation of Chinese patent right verification system, for example, long verification because of too much case-hearing levels and protracted tort procedure, inevitable ci rcuit litigation and role dislo cation of judges, bad cohesive litigation procedure and settlement difficulty between parties because of inconsistent litigation rules, etc. These questions violate the fairne ss and benef it value wh ich the system itself attempts to achieve, and also causes contradiction between administrative power and judicial power. There are m any reasons that cause problem s above, for exam ple, subsequent judicial examination haven’t right of overrule decis ion, inaccurate scope of exam ination for both invalidity declaration and judicial legitimacy, difference facts verification between these two procedures, etc. To solve the low operation efficiency of our patent right verification system, under the current system, the patent review comm ittee and the judicial office also constantly adjust the examination principle and the application of the law. The patent review committee try to increase the invalidated examination efficiency by strengthening authority review, but rigid function about modifying patent documents affects the realization of verification system. The judicial office achieves creative application of the law in paten t cases to indirectly solve patent verification problems, by means of surpassing the legitimate review scope of invalid patent administrative litigation, rejecting prosecute due to ambiguous protection scope of rights, applying expansively to the existing technology’ s plea, directly sentencing invalid patent, discretionary suspension in tort actions, and so on. However, the above methods have poor effects on the whole, for they haven’ t performed the function of maintaining social public benefit, and they have destroyed un iformity and harm ony of the patent right verification system.The third chapter argues the realistic debate and the theoretical evolution about the patent right verification system. Discussing the nature of the patent right verification system has become an obvious logical startin g point to demonstrat e its legitimacy of change. Under the material law, there is no doubt about the adm inistrative property of patent invalidation declaration and the ad ministrative litigation nature of its subsequent judi cial review. It also could be proved by these aspects as m aking up the flaw of patent exam ination, the specialty of its right to claim and dispute setting point, nature of relati onship subjects to the nature of legal act. From analyzing the property of other countries’ patent right verification system, it can be seen that the nature of the patent right verification system depends on the certain historical condition, that is, onl y the nature be considered in the certain condition can it be meaningful. Patent right is different from the traditional civil rights, so it has its own traits in the object of protection, the right’s force of law, and its dependency with social public benefits. Therefore, when establishing a system, it is m ore important to consider the specialty of the patent right and the special le gal function that such system shall undertake. Some countries have corrected the authority separation theory applied when establishing the patent right verification system of traditional civil law system and some theories applied in establishing judicial verification system in the common law system. This mainly out of the specialty of patent system and the demand to solve certain problems under certain historical stage. Under the new situation that “questionable patent” ha s increased patent system ’s operating social cost and thus hinder innovation, it has becom e a question which m ust be answered for the patent verification system reform that whethe r patent ins titution is the “ac celerator” to stimulate innovation or the “break ing vane” to hinder creation. If administrative and judicial verification system improves patent qual ity during the after filtering m echanism,the “accelerator” function for paten t system to st imulate innovation can be better perform ed. Since administrative verification and judicial verification have their own advantages in the after filtering mechanism, if their advantage s be perf ormed fully and judic ial power gives administrative proper limitation and respect, th en it shall ef fectively promote the operating efficiency of the patent right verification system, and shall attain the result with half effort.The fourth chapter ch iefly inspects the patent right verification system in foreign countries and Taiwan area of China. The system in the international patent law coordination is mainly embodied in these two agreem ents. The Complementary Treaty about Patent in the Treaty of Paris Conven tion advocates patent post-grant opposition in place of op position which before a patent is granted, while TRIPS s tipulates that patent verification shall accept judicial review and in line with procedural justice. The formation system of patent right in every country experienced lots of changes during the long history of its development. Overall, common law system countries pay more attention to administrative verification system, for its great importance to improve patent quality, filter problem patents and reduce litigation costs, while civil law system countries also realize the benefit value of judici al verification system on solving patent disputes quickly, unifying law enforcem ent standard and improving litigation efficiency. On the whole, the “double-track” model and parallel setting mode existed in the patent right verification system has increasingly become the mainstream mode, an d they have changed and perfected successfully during operation. Moreove r, the intellectual property trial agency, judicial concentrated jurisdiction system adopted in patent verification cases, the estab lishment and perfection of t echnical investigation mechanism play an important role in im proving the running ef ficiency of verification system. Each country’ s patent right verification system is influenced by many factors such as c onstitutionalism and judicial system, traditional legal culture, the interests of the parties, real material and human resources, so they present various developm ent tracks. In solving the problems existed in our formation system of patent right, some good practice that a few countries take, for exam ple, administrative verification system and determ ination of and subsequent judicial review’ s quasi-jurisdiction or civil action, concentrated jurisdiction and simplified procedure of patent verification’s second trial, construction establishm ent of verified litigant parties, all worth learning by our country.Chapter five researches the perfection of the patent right verification system in China. In reality, determining and af fecting the m ode of the patent right verifi cation system is the consideration and balance of vari ous realistic factors. As for the change of our patent right verification system, many factors shall be considered such as the requests of current economic and social development background and innovati on subjects, the whole condition of patent work and the capabilities and resources of related institutions, constitutional regime and legal culture tradition. The previously proposed cha nge program about the for mation system of patent right is m ainly based on the civil or adm inistrative nature of patent verification procedure. So the major advice is to define pa tent verification procedure as quasi-judicial or civil procedure, or endow the court direct ri ght of alternation under the adm inistrative mode. Although these program s can solve the problem s existed in our present approval, m ajor breakthrough are required if they want to be implemented theoretically and legitimately. If the change of patent right verifica tion system wants to get substantial progress, the debate about the nature of verification system shall be casted away, and the idea of adjustment is to giv e priority to benefit value with due consideration to fairness. On the premise of solving present problems effectively, controlling the cost of the reform and operation reasonably, making full use of the material and human resources of the existing organizations, minimizing the conflict among different laws, perfecting the relevant sy stem under the separate setting m ode is the first consideration. Because the operable ba sic perfect supporting system shall be the foundation to establish the patent right verification system. As for the legislative and judicial suggestions to perfect the patent right verification system, this paper looks for a new way and puts forward that the supporting system’s “combination blow” shall be for med based on the separated setting m ode. That is to say, only strengthening the com prehensive review and authority review of patent’s request for invalidation, precisel y defining the reasonable scope of judicial review about patent verification, building judicial review’s law trial mode of patent verification’s second trial and restricting the grounds of appeal, adding individual post-grant amendment procedure for paten t document, taking technical measures to solve the contradiction and conflict of “double track ”, and perfecting related supporting system(setting up two levels of intellectual property court syst em and technical inves tigation system), can better results be achieved. |
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