System Of Modification After Patent Authorization

The patent system is a system that protects inventions and promotes scientific and technological progress through legal and economic means.After the authorization of the patent,on the one hand,in order to avoid the patent right being granted to an invention-creation that does not conform to the provisions of the patent law,the law sets up an invalid procedure.On the other hand,considering the objective limitations,the law should give the patentee the right to modify the patent after authorization.This involves the question of how to balance the interests of the public and the patentee.The authorization of a patent means that there is a relatively stable scope of protection,and the modification of patent documents is bound to have an impact on it,which is the core of the post-authorization modification should be concerned.Therefore,it is necessary to make an in-depth study on the nature and mode of modification after patent authorization.Starting from the relevant systems of countries and regions with high level of intellectual property development,this paper makes a thorough analysis of the necessity and superiority of constructing intellectual property system,compares and analyses the deficiencies existing at the present stage in China.Several suggestions were put forward to perfecting the current system of modification after patent authorization,to better achieve the legislative purpose of patent law to protect the interests of the parties,and encourage invention and creation,In addition,to make a modest contribution to the policy of "Intellectual Property Power".This paper is divided into four parts:The first part mainly leads to the full text topic,makes a brief introduction to the concept of post-patent amendment,and expounds the necessity and superiority of the construction of modification after the patent authorization: we demonstrate the necessity of Post-Authorization modification of patent from the point of view of realization of patent value,responsibility and quality assurance of patent;at the same time,we measure the pre-authorization modification and Post-Authorization modification of patent,and discuss the advantages of Post-Authorization modification of patent.The second part introduces the revision system of patent authorization in the mainstream intellectual property countries or regions in the world.For example,the American’s corrective procedures for obvious errors,the reissue procedures for the scope of patent protection,the re-examination procedures and the Post-Authorization review procedures;the EU’s objection procedures and detailed provisions of the European Patent Convention and the European Patent Convention Regulations;and Japan’s revised trial procedures and specific operations after the authorization of patents.From the mature and perfect Post-Authorization revision system,we can find the commonness of system construction,that is,setting up specific revision procedures from the value and purpose of Post-Authorization revision,and getting the possibility of our country’s reference in system construction.The third part elaborates on the current amendment system of patent authorization in China,elaborates the relevant provisions of the amendment after authorization attached to the procedure of invalidation in the Patent Law,the Rules for the Implementation of Patent Law and the Patent Examination Guide.And explores the legal basis hidden behind the law from the perspective of legislative purposes and policy considerations,that is,the measurement of interests,the guarantee of reasonable trust and the procedural value of law;in addition,from the point of view of cost control,incentive innovation and achievement transformation,In addition,this paper makes a comparative analysis of the extraterritorial system,and explains a series of problems existing in the revision of patent authorization in China: the principle that the amendment must not exceed the scope has not been clearly regulated by law;the limited amendment method is difficult to meet the actual needs;the patentee’s right to amend is nominal,and the strict control of the amendment method leads to the imbalance of interests;the inconsistency of the understanding of the principle and method of amendment,the review committee The implementation of a set of standards by the courts leads to differences in the identification of cases in practice,and there are many limitations for patentees who do not have effective ways to modify patent documents outside the invalid procedure,which need to be improved urgently.The fourth part is the focus of the full-text argument,this paper is not only from the present point of view to examine the current patent authorization after the lack of revision,but also to consider the feasibility of reference and improvement from the perspective of development.By combing the amendment system of patent authorization in China and other countries and regions above,this paper summarizes the shortcomings of the revision after the patent authorization in our country on the basis of comparative analysis,and puts forward some suggestions for improving the modification after the authorization of our country: first,the perfection of the legal norm,especially the principle guidance after the authorization,which is not covered in the patent law,may consider supplementing the provisions of the patent law,and the amendments shall not be reflected in the patent law or the regulations of the patent law;Secondly,through the analysis of the extraterritorial system,we can see that the provisions of the amendment after authorization in the developed intellectual property areas are all in pursuit of a relatively standardized guide at the level of principle,rather than further amendment as in China.Therefore,we can consider strengthening the application of interpretation of the principle,more flexible defining the form of modification after authorization,rather than mechanical application of limited modification.and finally,considering the construction of specific systems on the basis of the guidance of Principles,On the one hand,it is the perfection of the invalidation procedure which plays an important role in the modification after the authorization of our country,because the right of the patentee’s modification is firmly limited,although the new examination guide has been liberalized in the way of modification,but it still can not solve the problem fundamentally,so it is suggested that the above views be taken into account appropriate liberalization of the patent document modification in the invalid procedure;On the other hand,the construction of a set of patent authorization after the independent declaration procedure independently exists after the modification system: one is to add an independent correction procedure,so that the patentee has the opportunity to clarify the patent documents,In addition,we can consider referring to the pre-authorization review system of China’s patent authorization after the establishment of the authorization of patent review,in the patentee to modify the patent documents,safeguard the interests of the patent at the same time,effectively make up for the current invalid declaration procedure under the revision of the loopholes.