Construction Of China’s Patent Right Positive-verification System

In the process of transforming a technology into a patent document,due to various reasons,such as misunderstandings and mistranslations and other defects in patent drafting,limited review resources such as utility models and designs without substantive review,negligence in the review process,and other undeliberate reasons for patentee,a large number of defective patents were granted.The result is that the patentee’s own rights are in an extremely unstable state,which is extremely vulnerable to the threat of invalidation procedures initiated by others,and it is also not conducive to the patentee’s subsequent industrialization of the patent.If things go on like this,it will cause an imbalance between the interests of patentees and the public and weaken the role of the patent system in stimulating innovation.To solve this problem,the key is to perfect the post-granted patent right verification system.The patent invalidation system is currently the only patent right confirmation system in my country.Although there is no restriction on the subject about invalidation,and it also gives the patentee a certain opportunity to modify it,however,regardless of the purpose of the procedure,the content of the procedure includes Provisions such as initiation conditions,procedural review,legal consequences,and limitations on the scope of amendments all indicate that it is mainly an invalidation procedure against an authorized patent initiated by a third party other than the patentee to protect their own interests or the public interest,and there is no remedy for granting the patentee a valid post-granted right confirmation.The patent holder can only passively respond to the cost investment and loss of interest brought by the third party’s invalidation examination.The legitimate rights and interests of the patentee are not effectively protected.This article believes that the key to solving the above problems is to provide a relief channel for the patentee to actively confirm the rights after authorization,that is,the patent right positive-verification system.This system allows the patentee to initiate the patent confirmation procedure spontaneously after discovering patent defects,and re-determine the scope of patent protection through full dialogue with the examiner,so as to eliminate patent defects,improve patent stability and the quality of China’s patents.Based on the analysis of the relevant right positive-verification system systems in the United States and Japan,combined with China’s patent system and basic national conditions,this article provides ideas and suggestions for the construction of China’s patent right positive-verification system.In addition to the introduction and conclusion,the full text is divided into four chapters:The first chapter,this chapter discusses in detail the status,functions,and operational characteristics of China’s patent invalidation system,clarifies the status and problems of China’s post-granted patent right verification system,and discusses the problems caused by the lack of the patent right positive-verification system in detail.The thesis is the foundation.The second chapter,this chapter discusses the necessity and feasibility of China’s patent right positive-verification system in detail.The patentee objectively has the internal demand of active confirmation of rights,Improving the patent invalidation system cannot solve the fundamental problems.The patent right evaluation reporting system cannot replace the formal post-granted patent right verification system.At the same time,from the perspective of China’s current basic national conditions,China also has the need for a patent right positive-verification system.The construction of this system is not only theoretically in line with the economic principle of patents,but also has the relevant system of patent right positive-verification system in developed countries outside the region that can be used as a reference,so it is also feasible to construct the system.The third chapter,this chapter is the construction of the China’s patent right positive-verification system.Specifically,it includes three parts: the initiation of the procedure,the review and modification of the procedure,and the legal effect of the procedure.Among them,the conditions for the initiation of the procedure include that the subject,the time and the reason for the initiation of the procedure.The review of the procedure includes the revision of patent documents,and the review procedures and content of applications for patent right positive-verification.In the legal effect of the procedure,it discusses the nature and the effectiveness of the patent,the coordination with the patent publicity and public trust system,infringement litigation and other systems.