On The Judicial Review Of Patent Removal And Invalidation Under TRIPS Agreement

This thesis aims to discuss how Members of WTO implement their obligations of judicial review for patent revocation and invalidation under the requirements of TRIPS Agreement. It makes efforts to find out the problems in current China’s practices and to give suggestions accordingly.The first chapter analyzes the system of judicial review on patent revocation and invalidation. During the international harmonization of the substantive patent law, TRIPS Agreement firstly set the duty of judicial review to each Member to provide available opportunity for judicial review on any decision to revoke or forfeit a patent. This chapter discusses the requirements of subject and the purpose of judicial review, in order to illustrate the specific content of the obligation of judicial review. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member’s law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be subject to review by a judicial or quasi-judicial authority. The purpose of patent revocation or forfeit procedure is to establish a fair mechanism protecting public interests by excluding those who shall not get the patent right.The second chapter focuses on the inner meaning of Article32and Article41of TRIPS Agreement. The Article32puts a duty on Members to provide judicial review on any decision to revoke or forfeit a patent. The Article42applies the due process of law and requires that the judicial review procedures of each Member shall reveal the value of procedural justice.The third chapter discusses four WTO Members’ practice of judicial review on patent revoke or forfeit. By comparing different designs of judicial systems, whether or not each member respect the procedural justice will reveal. In this chapter, the advantages and disadvantages as well as the different difficulties each member is facing will be inspected. United States, China, Germany and Taiwan (The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu) are chosen to represent different type of system design. These members are chosen by the following criteria:whether the patent infringement case and patent ownership affirmation case are governed by the same court; the decision of and forfeit of patent is made by judicial authority or administrative authority, and; whether there is a new law of patent.The final chapter studies the difficulties being faced by China nowadays. The difficulties include the scope of judicial review which is not wide enough, rational judicial review which is not included in the current judicial review system, the quality of judicial which is not stable, and the division of cases which is not clear. In this chapter, the problem of cycle of suit and the attitude of court toward the scope of judicial review are also discussed. Finally, in this chapter, the possibility and the difficulty of forming a united court dealing with criminal, administrative and civil cases related to intellectual property rights are presented. By suggesting possible solution, hopefully, the judicial review system of China can truly comply with the requirements set by TRIPS Agreement so as to achieve the fairness and equity of justice.