Research On The Judicial Identification Right Of Patent Validity

In the process of building a powerful country with intellectual property rights,the problems brought by the "administrative simplification" mode of patent validity recognition power are becoming more and more serious,which can not adapt to the great protection pattern of intellectual property rights.Giving the court the power of judicial determination of patent effectiveness is a powerful way to solve the problem that patent infringement litigation is subject to the invalidation procedure.However,how to construct this power and how to ensure the effective operation of China’s patent system are the key issues to be considered.In addition to the introduction and conclusion,this paper is divided into four parts:The first part analyzes the allocation and problems of the right to determine the effectiveness of patents in China.At present,China adopts the "administrative simplification" allocation of the right to determine patent effectiveness,and the operation effect of this power allocation mode is not ideal.At present,the court does not have the power to determine the effectiveness of patents,and there are obvious and serious problems: the defendant’s malicious delay in litigation leads to the protracted infringement litigation,and the court’s judgment can not be actively enforced after it is made,endangering the authority of justice.The patent infringement litigation in the state of "administrative simplification" of the right to determine the patent effectiveness puts forward practical needs for the right to determine the patent effectiveness.The necessity,rationality and feasibility of the right to determine the patent effectiveness make the right to determine the patent effectiveness possible.The second part is the category analysis of the right to judicial determination of patent effectiveness.The object of patent validity determination is patent right.The nature of patent right determines whether the court has the right to determine it."Private property" is the inherent characteristic of patent right.The dispute about patent right belongs to civil legal dispute.The identification of patent right also has the internal attribute of civil judicial identification.In the process of hearing patent infringement litigation,the court finds that the effectiveness of patent right does not exceed the scope of its judicial authority.As a part of judicial power,the power of judicial determination of patent effectiveness exists,which has the functions of reasonable allocation of administrative power and judicial power,improving the trial efficiency of patent infringement litigation,maintaining judicial authority and so on.It cooperates with other relevant powers and is jointly committed to the good operation of the patent system.The third part constructs the rules of the judicial determination right of patent effectiveness.The rules of the right to judicial determination of patent effectiveness are composed of various elements.The starting time of the right to judicial determination of patent effectiveness,the subject of the request,the preconditions and the effectiveness constitute the content of the rules of the right to judicial determination of patent effectiveness.The deconstruction of the rules defines the direction of the exercise of power.The court’s exercise of the judicial determination power of patent effectiveness is not limited by "obvious invalidity",adopts the compound examination method,and the scope of examination should be limited.Because the existing technology defense rules stipulated in the patent law also impose the same restrictions on the above elements,and the existing technology defense has the same points with the determination of patent invalidity,the rules of judicial determination of patent effectiveness can be stipulated in the same article as the existing technology defense rules.The fourth part puts forward the realization mechanism of the judicial determination right of patent effectiveness.The professionalism of technology puts forward high requirements for the ability of technical fact finding.In order to enable the court to correctly exercise the power of judicial determination of patent effectiveness,we should establish a technical judge system,improve the system of technical investigators,and build a diversified mechanism of technical fact finding to ensure the exercise of the power of judicial determination of patent effectiveness.Judicial power and administrative power should strengthen communication,respect each other,adhere to the relativity of justice and the relevance of administration to the world,and establish a communication mechanism between justice and administrative information.