Research On The Technology Fact-finding Mechanism Of Patent Litigation

The fact-finding of patented technology has become a difficult point in patent litigation because of the professionalism of its technical content.Although China has established a series of technology identification mechanisms,the incompleteness of relevant provisions in legislation and the in-coordination within the mechanism have directly affected the efficiency and authority of patent litigation.The article uses the methods of theoretical analysis,legal comparison and empirical analysis to analyze the key links of the patent technology fact-finding mechanism,the configuration of the technical investigator’s interpretation power and its dominant position in patent litigation,and the neutral mechanism for patent technology identification.Then put forward suggestions for clarifying the scope of the technical investigator’s interpretation power,constructing the operating procedures of the patent administrative department’s identification mechanism,optimizing the source of selection of expert jurors,and a comprehensive coordination plan for the overall identification mechanism.The article is divided into four chapters around the above-mentioned themes.The first chapter,the concept of patented fact-finding mechanism and operation status of China.The novelty and inventiveness of a patent determine its characteristics different from other generalized technologies,and it is most urgent and realistic to construct a mechanism for finding technical facts based on the patent perspective.There are currently five technical fact-finding mechanisms in China’s legislation,but in practice too much reliance on external verification mechanisms results in low litigation efficiency.The powers of technical investigators as an internal verification mechanism are not clearly defined.The selection scope of expert jurors is narrow.Due to the dualization of administrative and judicial confirmation of patent,the separation of the judgment on the three natures of patent and the principle of the same or equivalence may lead to the cycle and conflict of technical fact finding.And the mechanism fails to alleviate the imbalance of the parties’ ability to provide evidence.The second chapter,the theoretical and normative basis for the technical investigator,as the internal identification mechanism,to allocate the interpretation right in patent litigation.The right of interpretation is an important right and obligation of the court to guide the court trial,balance the strength of both parties,and promote full debate in order to achieve substantive justice.In patent litigation,because judges lack the knowledge of technology and cannot perform this function well,granting the right of interpretation to technical investigators will be more conducive to promoting the efficiency of court trials and balancing the litigation capabilities of both parties.In terms of normative basis,there are relevant provisions that court personnel other than judges also actually exercise the right of interpretation;in terms of theoretical basis,the technical investigators are both experienced in participating in the whole process of litigation and based on the discourse theory of law.It is the best subject to exercise the right of interpretation.The third chapter is the feasibility analysis of the patent administrative department as an external identification mechanism.The nature of patent right is private right,which means that the patent administration department,as an Independent institutions,will not affect the interests of interested parties in the process of court’s technical fact finding.However,at present,the advantages of the patent administration department in the identification of patented technology are ignored and wasted.Whether through the analysis of statistical data or system system,it is a feasible scheme for the patent administration department to become a neutral third-party Identification Organization.The fourth chapter provides suggestions for improving the patent technology fact-finding mechanism.The first is to clarify the legal status of technical investigators and the specific content of interpretation power,so as to solve the problem of unclear definition of power and alleviate the difficulty of parties in providing evidence,and emphasize the targeted training of technical investigators of different types of posts;Secondly,as long as we broaden the selection sources,we can reflect the popularity and popularity of jurors in the professional field and return to their essential value;Thirdly,establish a technical investigation committee under the patent administration department,put forward specific operation procedures,make it a neutral authority to find out technical facts,improve judicial efficiency and avoid the fact finding falling into a cycle;Finally,realize the dynamic operation within the patent technology identification mechanism,and systematically and principled stipulate the internal identification mechanism through legislation.