Study On Post-Granted Examination Of Issued Patent

China’s review of the validity of the granted patents adopts the administrative monorail system,which consists of the patent invalidation procedure and the patent confirmation litigation.The Patent Reexamination Board(PRB),as an administrative organ,re-examines the patent for compliance with the authorization conditions with the patent invalidation administrative procedure and draws conclusions.A party who is dissatisfied with this conclusion may file a lawsuit in the court with the PRB as the defendant,and the court shall try the trial of the patent invalidation conclusion in accordance with the administrative proceedings.The post-granted examination function is to correct the patent authorization,invalidate the patent that does not meet the patent authorization conditions,or re-define the patent to meet the authorization condition by modifying the patent claim and invalidating the patent.Therefore,the essence of postgranted examination is the redefinition of the scope of patent.The reason why this correction is needed is because of the limitations of the capability at the patent application tage.The patent administration department is limited by the resource endowment(mainly the prior-art and related field knowledge),and considering the value difference of the patented technology,it is impossible and unnecessary to achieve a better effect by investing more in costs.It is therefore possible to grant patents to inventions that do not meet the conditions for authorization.The post-granted examination re-examines the patentability of patents with higher market competition and value granted by third-party triggering,and provides lower-cost review resources through information provided by both parties and confrontation debates.The results of the post-granted examination will have an impact on the scope of the patent rights and the scope of protection,and may lead to changes in legal relationships such as infringements and contracts related to the patent in question.The design of the postgranted examination mode is based on the definition of the scope of patent protection,the process of distributing the review rights and reviewing resources.This allocation includes multiple aspects,such as the assignment after authorization before and after authorization,the distribution between different procedures after authorization,the distribution between different examination subjects,and the distribution of different value status based on different types of patents and patents.There are many problems in the current post-granted examination mode of patents in China.The most direct problem is the issue of circular litigation caused by patent confirmation litigation.The repeated determination of the validity of patent rights not only leads to the unstable patent rights,but also makes the related infringement lawsuits long overdue.Taking this issue as a starting point has raised concerns about more problems with existing models.The most important of these is the misplacement of the role of the parties in the patent confirmation proceedings,that is,the Patent Reexamination Board,which should be in the middle of the ruling,actually becomes the spokesperson of one party in the confirmation of the right,and the other party can only participate in the judicial review process as a third person.At the same time,this made the Patent Reexamination Board frequently involved in the lawsuit,which led to the adverse impact of its work as a patent examination authority.Due to the existence of these problems,the post-granted examination function cannot be effectively realized,and even the function is alienated.The system originally designed to improve the quality of patents and promote the function of the patent system has become a means for parties to maliciously delay litigation,crack down on competitors,and evade research and development.In order to solve these problems,both the theoretical and practical circles have proposed some reforms,such as introducing a patent invalidity defense system,allowing the court to directly examine the validity of patent rights,shortening the trial of patent confirmation,and making the judgment of the court final.These recommendations involve deeper theoretical issues.This article will conduct an in-depth analysis of these issues and try to propose a new design.In addition to the introduction,this article is divided into the following seven parts.The first chapter is the basic theoretical analysis of the post-granted examination of patents.After determining the concept of post-granted examination of patents and the meaning and content of post-granted examination mode,this chapter analyzes the functions of post-granted examination.After that,this chapter uses conomics as a tool,and proposes that the design of the post-granted examination mode is the distribution of the review resources in the process link,the review subject and the time dimension.The second chapter is the deconstruction and evaluation of the current postauthorization review mode of patents in China.This chapter analyzes the administrative procedures and judicial procedures of the post-granted examination of patents in China,and the connection between the effectiveness and procedures of the two.At the same time,it analyzes the connection between the patent infringement lawsuit and the patent authorization review procedure.China’s patent authorization review administrative procedure adopts a single review authority and a single review mode.The start-up conditions are relatively loose,and there are no excessive restrictions on the subject and time.The reason for the patent invalidation is related to almost all content related to the patent authorization conditions.China’s patent confirmation litigation is in the form of administrative litigation.The court’s review of the patent invalidation decision has almost completely penetrated the substantive issue of patent validity,but it is subject to the scope of administrative litigation review,judgment methods,etc.The review of the validity of patents is “indecisive,not finalized”.This model has led to problems such as review efficiency and litigation participant structure.From the perspective of historical evolution,the changes in the post-granted examination model of China’s patents are increasingly considering efficiency and resource factors,paying more attention to patent cases as intellectual property cases,and the particularity of traditional civil and administrative litigation,and more emphasis on justice.In the process,the parties themselves have the ability to claim rights.At the same time,it is also more inclined to strengthen the court’s right to review the patent validity entity.The third chapter is the analysis of the post-granted examination model of patents in the United States,Japan,and Germany.The United States has adopted a large and comprehensive multi-track review model,and both courts and administrative agencies can review patent validity issues in different procedures and produce effective effects.Japan adopted a quasi-dual track system and a patent-free invalid defense.The German model is a typical judicial monorail system.The validity of patent rights is reviewed by a specialized federal patent court.If it is not satisfied with its conclusion,it can be directly appealed to the Federal Supreme Court.The fourth chapter focuses on the administrative procedures for post-granted examination of patents.The patent invalidation procedure should be recognized as an administrative adjudication procedure,and its effectiveness is derived from the administrative power of the PRB.In this chapter,the quasi-judicial characteristics of the patent invalidation procedure are mainly studied,and the quasi-judicial transformation plan of the patent authorization review mode is analyzed.This chapter points out that the quasi-judicial character of the existing invalidation procedure is not sufficient to determine its quasi-judicial status.Quasi-judicial transformation has certain necessity and feasibility,but it needs to make major adjustments to the existing judicial system.The fifth and sixth chapters are based on the judicial procedure of postauthorization review of patents.The fifth chapter focuses on the limited breakthroughs and limitations of the administrative litigation law in the existing model.At the same time,after the patent authorization review procedure is characterized as the administrative adjudication procedure in the previous chapter,this chapter sorts out the current disputes of the administrative law scholars on the remedies for dissatisfaction with the results of administrative rulings,and proposes that it should be handled in the form of civil litigation,and analyzes if The subsequent administrative litigation transformation into a civil procedure,what theoretical basis needs to be established and how to adjust the existing civil litigation system.The sixth chapter focuses on the effectiveness of the court’s findings on the validity of the patents granted.The patent determines the validity of the patent by the judicial design of the re-delineed patent authorization conditions of the scope of rights.This chapter studies the relevant theories of patent ineffective defense in infringement litigation,and analyzes its obstacles in theory and practice.At the same time,this paper analyzes the scope of the court’s right to review using the theory of res judicata in the Civil Procedure Law.In the seventh chapter,this paper attempts to propose a reform plan for the postauthorization review mode.This program is carried out in two phases.In the first phase,the advance administrative review process is retained and modified,and the subsequent judicial process is positioned as a civil proceeding and the final award is given effect.In the follow-up judicial process,the scope of the review and evidence will be limited.In an infringement lawsuit,the defendant may file a patent infringement defense,but at this time,the patentee may advocate that the issue be transferred to the administrative agency for review in the administrative review process and make a conclusive conclusion.The second phase of the reform is mainly to the quasi-judicial transformation of the administrative review process,but more theoretical and practical preparations are needed,such as the adjustment of the civil procedure law system and the establishment of the intellectual property appeal court.At the same time,the feasibility and specific implementation of this phase of the transformation needs to be based on the study of the first phase of operation.