Research On The Dual-track Path Of Patent Confirmation Mode

Patent right is a statutory exclusive right generated in accordance with legal provisions.It is the state based on the application of the inventor or designer to disclose the invention or the content involved and that the invention or design has a legally prescribed interest to the society.The premise is to grant an exclusive right to the inventor or designer within a certain period of time according to legal procedures.Unlike the automatic acquisition of copyright,the acquisition of patent rights is based on the application of the inventor or designer.Patent confirmation refers to the procedure by which the patent granting agency makes decisions on the application and invalidation of patents and the court conducts judicial review of relevant decisions.It can be seen that patent confirmation is divided into two situations: patent confirmation at the time of authorization and patent confirmation at the time of invalidation.The patent confirmation discussed in this article only refers to the situation of patent confirmation when the patent is invalid,that is,the process in which the technology that has been granted patent right should not be granted the patent right,and the examination authority determines the validity of the patent right.The scope of the patent right is stipulated by law,and the content of the right depends on the written record,and the state of the right is unstable.According to the law,anyone who believes that the granted patent right is invalid after the patent right is granted can file an invalidation request.At the same time,according to the current laws and regulations,under the premise that the infringement judgment has not been executed,the result of the infringement judgment can be changed according to the conclusion of the confirmation procedure.The reason is that the patent is declared in accordance with the provisions of Article 47,paragraph 2 of the Patent Law.Decisions on the invalidity of rights,judgments,mediations,executed or executed processing decisions,and executed contracts do not have retrospective effect.In other words,all circumstances other than the above can lead to changes in results,so the result of civil litigation depends to a certain extent on the result of the administrative procedure for determining rights.The root of the intersection between the civil procedure for patent infringement and the administrative procedure for affirming rights is that my country’s patent law has followed the binary system of civil infringement procedures and administrative invalidation procedures in the European system.With the development of intellectual property protection practices,both theoretical and practical circles have gradually realized that the drawbacks of this dual-division system have become increasingly obvious,and the optimization of patent invalidation procedures has also become a hotly debated issue.Although the issue of civil and administrative intersection in the field of patents does not deviate from the basic category of intersection of civil and administrative affairs,it still has a certain degree of particularity.Since patent right is a legal right,and the object of the right is immaterial,it is different from general civil rights.Therefore,the method of handling intersecting civil and administrative cases in the field of patents cannot simply adopt traditional intersecting civil and administrative cases,but should be targeted at The particularity of patent rights,formulate solutions that meet the characteristics of patents.For example,in determining the validity of patents in patent infringement,it is not necessary to adhere to the administrative pre-procedures for right confirmation.Instead,it should be combined with the private nature of patents and the patent system’s pursuit of economic benefits and litigation efficiency.In the infringement litigation,reasons such as the defense of invalidity of the patent right are introduced.Japan was a typical binary separation country in the early days.With the continuous increase in the number of patents,Japan realized that the binary separation model was difficult to adapt to its patent operation status quo,explored system reforms,and introduced patent invalidation defenses in patent infringement litigation.By establishing a corresponding post-authorization opposition system to ensure effective coordination between patent infringement and confirmation,the effective operation of the patent system has been realized.Based on the analysis of my country’s patent infringement and patent confirmation system,this article points out the problems of my country’s current patent confirmation monorail system,which is difficult to adapt to my country’s patent status.Combining with the foreign patent right confirmation model,it is pointed out that my country’s patent confirmation should abandon the single-track system confirmation model,adopt the dual-track system confirmation model path,and introduce judicial confirmation.Specifically,in addition to the jurisdiction of the administrative agency and the judicial authority to determine the validity of a patent,the court can determine the validity of the patent in infringement and confirmation litigation.In other words,in the process of affirming rights,the court has the right to make judicial changes.When the court considers that the decision of the patent administration agency is unlawful,the change can be made without ruling to reject it.In the infringement litigation,the invalidation defense system is introduced,and the court can Conditions of the validity of the involved patents are determined.If you are dissatisfied with the judgment of patent infringement and right confirmation,you can appeal to the Intellectual Property Division of the Supreme People’s Court to realize the unification of the judgment standards for infringement and right confirmation.The introduction of a dual-track system for confirmation of rights will help solve the problems of uncoordinated procedures and low litigation efficiency arising from the operation of the current system,improve the judicial system of patent infringement and patent confirmation in my country,and restore the system theme of the patent system to encourage innovation.