Intersection And Coordination Between Patent Right Verification Procedures And Infringement Litigation Procedures In China

Patent right verification disputes and infringement disputes are handled differently in China,patent infringement litigation is adjudged by the people's courts in civil judicial procedures,but the requests of patent right verification are examined by the Patent Reexamination Board.If litigants are not satisfied with the decision,they can institute administrative proceedings in Beijing Intellectual Property Court.In patent infringement litigation the court has no right to examine the validity of the patent right,if the accused infringer requests the Patent Reexamination Board to declare the patent invalid,so it creates intersection between patent right verification procedures and infringement litigation procedures.The people's courts shall decide whether to suspend the patent infringement litigation to wait for the investigate conclusions of the patent right verification procedures.Owing to the patent right verification procedures,the patent infringement litigation often has to be suspended for a long time,thus disputes can't be resolved quickly.If the proceedings are not suspended,there may be conflicts between patent infringement judgments and patent validity judgments.In practice,patent right verification procedures and infringement litigation procedures are discordant,which seriously affects the fairness and efficiency of disputes resolution.The authority to determine the validity of patents and the power to hear patent infringement cases are separated.The advantage of this model is that the Patent Reexamination Board can investigate the validity of patents centrally to ensure the correctness and authority of the review conclusions.The weaknesses are easy to extend the period of patent infringement cases and influence the efficiency of the processing of patent infringement cases.Separation of the authority to determine the validity of a patent and the power to hear patent infringement cases is part of the reasons for the incongruity of trial procedures,but not the root causes of problems.Germany also strictly divides the path between the invalid litigation and tort litigation,and adopts the function-power separation mode.But there are no conflictsof judicial conclusions like our country.Our country simply learned the function-power separation mode in German formally,but the specific system designs are not perfect.The reasons for the emergence of contradictions in China are that jurisdictions of patent infringement cases are decentralized,patent right verification procedures are not perfect,and the procedures of patent right confirmation are not in harmony with the procedures of infringement trials.Breaking out the function-power separation mode,the situations of referee conflicts are inevitable.Judicial capacities of judges are different.The patent rights can not be accurately defined.It is likely that different courts have different opinions about the validity of the same patent.Conflicts between the court's decision and the Patent Reexamination Board's decision are inevitable.Studying the solutions about patent invalid disputes and patent infringement disputes of United States,Japan,Germany,we can understand the advantages and disadvantages of each model,and grasp the direction of the reform about the system.In United States the judicial organs are mainly responsible for the patent invalid litigation,in recent years,the United States strengthens the administrative organs' authority to review the effectiveness of patents.The path of patent infringement litigation and patent invalidation litigation in Germany is strictly divided.It is helpful to ensure the correctness and authority of invalid judgments.In recent years,Germany has been constantly improving the system of patent invalid trial,improving the efficiency and shortening the time.In Japan,the administrative organs are responsible for the invalid trials of the patent.Japan is trying to determine the validity of patents directly in tort cases in the reform process of intellectual property system in recent years.Under the function-power separation mode,improving the specific contents of the system can effectively alleviate the contradictions in practice.Improving the patent right verification procedures to avoid the occurrence of circular litigation and increase the speed of settling patent infringement disputes,raising threshold of patent invalidation procedures to prevent the program from being abused,hearing patent infringement cases intensively and strengthening the ability of identifying technical problems to coordinate conflicts between courts,establishing a unified intellectualproperty appellate court to coordinate the process of the infringement proceedings and patent invalidation procedures and maintain the unity and authority of judgments.