Analysis On The Civil Liability Of Patent Agency

With the vigorous development of IPR and the prosperity of the patent agency industry in China, some agent behavior of IPR tort which infringes upon the applicants'legitimate rights and interests emerged. Thus, the glorious image of patent agent, "the protector of inventions and creations", is seriously affected, and the patent agency industry is facing a crisis of trust.This paper is based on the basic theory of civil law and focuses on the special status of patent agents, in which he practice of patent agent and theoretical basis of civil law joined together. Then, according to the relevant provisions of existing law, the problem of the civil liability which the patent agent shall bear is discussed in the light of the legislation experience of attorney liability.This paper is divided into five parts:In Part 1, the case of contract dispute of Wang Yugang v. Shanghai Patent Agency Co., Ltd. in details is introduced, the focus of the case and the main issues to be resolved be put forward.Part 2, analyze the features of the patent agent behavior and the civil liability of patent agent from the perspective of the occupational characteristics and the social functions of the patent agent, i.e., the subject of responsibility and behavior are different, the civil liability of patent agent adopt the fault liability principle and have the characteristics of professional liability.Part 3, analyze the nature of the civil liability of patent agent:liability for breach of contract or liability for tort, and propose the view of the author, that is liability for professional duty.Part 4, analyze the dispute focus of the case, propose the criterion of the professional attentive duties of patent behavior, which is the level of a person in this art generally achieved, and the view that "victim consent" can not exonerated the liability of patent agent by itself.Part 5, According to the problem of the case, proposed the establishment of civil liability for acts of professional liability patent agency identification system recommendations, and proposed to strengthen industry self-regulation and the establishment of patent agents and professional liability insurance risk fund system of recommendations.