Application Of Temporary Protection System Of Invention Patent

Article 13 of Patent Law provides that an applicant for an invention patent can apply for temporary protection before the patent application is granted,and request the implementer to pay the appropriate usage fee.Article 11 of the Patent Law provides that no one can implement the patent without the permission of the patentee after the patent is granted.If an implementation behavior terminate before the patent is authorized or begin after the patent is authorized,the determination of its infringement will not be affected.If the implementation behavior continues from the temporary protection period of the invention patent until the patent authorization,the recognition of the nature of the act after authorization has caused controversy.Before the Guiding Case No.20 of the Supreme People's Court is published,the common practices and views in practice is that since the atent Law does not prohibit others from implementing the applicant's inventions during the temporary protection period,the implementation behavior dose not infringe the patent right,and the implementer only needs to pay appropriate usage fee.However,if the applicant is granted a patent right,the subsequent implementation of the product obtained by implementing the technical scheme of others during the temporary protection period will infringe the patent right if it complies with the provisions of Article 11 of the Patent Law.However,in the No.20 Guiding Case of the Supreme People's Court,the Supreme People's Court overturned the views of the first-instance and second-instance courts and argued that the subsequent implementation of the sued patent infringement products which are manufactured,sold,or imported during the temporary protection period does not infringe the patent right.Since legislature has not enact specific provisions on the temporary protection system of invention patent,the applicants in the temporary protection period have only enjoyed extremely weak protection.Such judgments have caused a controversy in the theoretical circles and the practical circles.In response to this controversy,this thesis explores a more reasonable way to identify this focus.This thesis is divided into four parts.The first part: Summary of the case and the focus of the dispute.This section mainly introduces the basic facts of the No.20 Guiding Case of the Supreme People's Court,and summarizes the focus of the dispute,that is,whether the subsequent implementation behavior of the product obtained by implementing the technical scheme of others during the temporary protection period infringe the patent right after the patent right is authorized.The second part: Explanation for the basic theory of the temporary protection system of invention patents.This part analyzes the intent,legal nature and applicable conditions of the temporary protection system of invention patents,in order to provide theoretical basis for the argumentation of the controversial focus.The third part: Analysis of whether the subsequent implementation behavior of the product obtained by implementing the technical scheme of others during the temporary protection period infringe the patent right after the patent right is authorized.This part begins with the textual interpretation,coordinates through the system interpretation and finally rises to the interpretation of the legislative purpose of the patent law and the temporary protection system of invention patents.It is concluded that the subsequent implementation behavior of the product obtained by implementing the technical scheme of others during the temporary protection period does not infringe the patent right after the patent right is authorized.The fourth part: Reflection on the application of the temporary protection system of invention patents.Firstly,this part evaluates the judgment of the No.20 Guiding Case of the Supreme People's Court,and puts forward the problems on the basis of affirming its judgment ideas.Secondly,make recommendations for handling the similar cases from three perspectives: identify the facts of the cases by the court;apply the exceptions to the principle of prohibiting dual authorization;the method of determining the amount of the temporary protection period.