Comparative Study Between The "Search Report" And The "Patent Evaluation Report"

Search report system of utility model was added in 2000 at the second revision of the Patent Law, taking into account the preliminary examination system of utility model patent, the stability of the right is not high, and in order to strike a reasonable balance of the interest between the patentee of utility model patent and the public, to guide the patentee of utility model patent exercises the rights reasonably and legitimately, with reference to overseas practice of appropriate nation's legislation. Since the implementation of the system, indeed, some patent of utility model do not have the features of patent have been blocked, the public avoided the burden of lawsuit, but there have been some problems need to be improved urgently. In 2005, the State Intellectual Property Office launched the third revision of the Patent Law and its Implementing Regulations. Up to now, the new Patent Law and the new Implementing Regulations and Review Guide was came into effect on October 1, 2009 and February 1, 2010 respectively.In this revision, the "search report" system has been changed to "patent evaluation report" system. This change is not only the change of name, but also has great improvement in essence, and is a response to those problems arising from practice. Therefore, a careful analysis of this institutional change and a deep inquire of the essential significance hiding behind the provisions have a great importance upon the theoretical research and practice development of this system. This is the main purpose of this paper.This paper is divided into five parts except for introduction and conclusion.Part One introduces a typical case related to the search report of utility model ----" Luo Shubin v. Liu Mingxi etc. patent infringement dispute, " including the basic circumstances of the case, the focus of the case, controversies and differences of opinion and Raises questions.Through the analysis of the case, the paper arose people's consideration of the deep-seated problem about the Search report system of utility model in China.Part Two points out that the search report system of utility model in China revealed a number of shortcomings and deficiencies at the same time it remedied the instability of the utility model patents effectively by analyzing the contents,implementation and problems of the Search report system of utility model. So, it needs to be improved urgently. Part Three compares and analyze the Search report system of utility model of Germany, Austria, France, Japan, South Korea, Chinese Taiwan and other countries and regions in order to derive some useful experience related to our system improvement.Part Four systematically explores those different points between the evaluation report system of patent and the Search report system of utility model and the meaning behind the content. And on this basis, it puts forward a number of further improving recommendations to the changes in part.Part Five advances some ways of thought and suggestions about several problems which are not yet involved in the current revision of the evaluation report system of patent, based on the contrast between our old and new systems and learning from relevant experiences of other countries and regions.