Research On The Judicial Conformation Of Administrative Meditation Agreement Of Patent Dispute

As an important alternative dispute resolution method,administrative mediation has a unique advantage of professionalism,efficiency and authority compared with litigation,people’s mediation,arbitration and other dispute resolution methods.In the face of the sudden increase in the number of patents and the rapid increase in patent disputes caused by the traditional means can not cope with the current situation,administrative mediation of patent disputes plays an important role in dispute settlement.However,due to the limited effectiveness of the administrative mediation agreement on patent disputes and the lack of enforcement potency of the mediation agreement,the system failed to play its due effect.Therefore,in order to further explore the potential of administrative mediation system for patent disputes and improve the effective connection between administrative procedures and judicial procedures in patent protection,it is necessary to establish and perfect the judicial confirmation system of administrative mediation agreement for patent disputes,which is centered on court review.The value of the system lies in: through judicial confirmation of the non-litigation procedure,the mediation agreement which only has the effect of private law can obtain the enforcement potency in the sense of public law and realize the "legal transformation" of effectiveness.Starting from the nature of the judicial confirmation procedure for administrative mediation of patent disputes and the confirmation of the validity of the agreement after the confirmation,this paper takes the actual pilot situation as a sample,takes the experience of system implementation in other regions as a reference,and at the same time carries out a systematic study on the basis of legal theory analysis.First of all,the birth and the necessity of the application of the system are described.At the same time,it is clearly recognized that the administrative mediation and judicial confirmation of patent disputes belong to the non-litigation procedure and the administrative mediation agreement is enforceable but not admissible after judicial confirmation.It lays a foundation for the later research.Secondly,through the literature analysis and the actual experimental analysis of the system,summed up some gaps and deficiencies in the theoretical discussion and procedure design of the system,including: the legislative form is controversial,the object of judicial confirmation is vague,the boundary of judicial review is not clear and the remedy system is missing after the judicial confirmation error.Thirdly,based on the isomorphism of time and space and the requirement of exploiting the advantage of China’s backwardness,the relevant institutional practices of some regions outside the region are investigated and the enlightenment to China’s institutional construction is summarized.Finally,returning to the requirements of practice and jurisprudence,this paper puts forward the principles of confidentiality,power exploration and efficiency that should be adhered to in improving the judicial confirmation system of administrative mediation of patent disputes,as well as suggestions and measures to deal with the above difficulties,including: in the choice of legislative form,the same legislative method should be adopted to make provisions for the system;For the objects of confirmation,in order to enable the judicial confirmation system to give better play to its institutional advantages,the objects of judicial confirmation by the court shall include the provisions of Article 65 of the Patent Law and other disputes listed in Article 85 of the Rules for the Implementation of the Patent Law after excluding ownership disputes;The court should follow the principle of moderate review when conducting judicial review of the agreement,clarify the boundaries of the rights of the subjects of the parties,and actively use the "negative list" to eliminate the cohesive barriers between different procedures.Establish a diversified judicial confirmation relief channel.