Research On The Japanese Administrative Remedies For Defective Patents

Since the enactment of The Patent Law in 1985,China has seen a stable growth in the number of patent applications and authorizations within its border,as well as a strong momentum in overseas patent applying.Nevertheless,the development of patent should not only focus on the amount,but the quality of new patents.It is crucial that administrative remedy mechanisms are utilized to screen out defective patents and improve the quality of the overall patent pool.To date,major countries have adopted administrative remedy mechanism for defective patents in their patent management system;Japan,in particular,is a remarkable leader in this category.An in-depth investigation of the Japanese model will help China further optimize its own administrative remedy mechanism for defective patents.Administrative remedy mechanisms for defective patents are comprised of three basic components.First,the recipients of the remedies are the defective patents.Second,the objects of such remedies is the patent investigators.Third,the subject consists of the public,interest parties and patent owners.Since patent rights are monopolistic in nature,patents with defect can disrupt the market.Therefore,it is necessary to provide administrative remedies to the defective patents through institutional arrangement.From the determination of administrative remedy rights,the scope of the subject and the distribution of testimony liability,administrative remedies for defective patents are proved to be feasible.The Japanese Patent Office(JPO),with the ambition to achieve the best and the fastest patent examination in the world,has revised administrative remedies for defective patents multiple times for more than a hundred years'time.Eventually,JPO established the current systems on information providing,trial decisions revision,appeals processing and patent invalidation.This paper classifies the four systems into two categories.First category:Supervision rights-based Japanese administrative remedies for defective patents.It includes an information providing system for non-specific subjects after patent application,and an appeals processing system for non-specific subjects after patent authorization.Since both systems are public interest-oriented,both can enable non-specific subjects to exercise their supervision rights to seek the remedies for defective patents.Second category:Requisition right-based Japanese administrative remedies for defective patents.It includes a patent opposition system for patent owners after patent authorization,and a trail for invalidation system for interested parties after patent authorization.Since both systems are designed to safeguard the rights of the applicants,only the specific subjects by exercising their requisition right can seek remedies for defective patents.Information providing system,which has been revised for many times since the enactment in 1970,provides the public with easy access to the paper trail throughout the patent application.For defective patents,its remedial significance is as follows:1.Pre-authorization information providing can improve the efficiency and quality of the examination,sift through a large number of patents and save resources;2.post-authorization information providing can be references for the patent owners,appellants,the initiating parties of invalidation and the public and sources of evidence for the JPO investigation.Appeals processing system,which had been altered for multiple times or even abolished in the Japanese patent system,was reinstated in 2014.Any third party may file an opposition to the grant of a patent within six months of publication.This six-month grace period,as an institutional arrangement,encourages the public to exercise their rights of supervision to turn over the inappropriate patent authorizations and to eliminate the defects of the patents at an earlier stage,thus improving the overall quality and legitimacy of patents.Appeals processing system is essential and irreplaceable for ensuring patent rights of high-quality and high-stability and for executing the go-global strategy of companies.The trial decisions revision system,established in 1959,provides a channel for patent owner to seek remedy after authorization.It allows a patent owner to revise the defective part of his or her patent within certain range,a strategy to defend attacks from others and prevent unnecessary disputes.The patent invalidation system has been a major remedy method of administrative remedy mechanism after authorization,since the 1988 Japanese Patent Law Reform.Invalidation trial can proceed within the patent life or even at any time after the expiration of the patent,but the subjects that come to trail are limited to the interested parties,an institutional design to specifically address the patent disputes among the interested parties.The invalidation system has an error-correction function for the entire patent authorization system,and a plea function for the alleged infringers.Judging from the different combinations of remedial measures,Japanese administrative remedies for defective patents have gone through five stages.First,the period of the coexistence of appeals processing,patent invalidation system after authorization and the trial decisions revision(1921-1970).Second,the period of the coexistence of the information providing system before authorization,the appeals processing system and the patent invalidation system after authorization and the trial decisions revision system(1970-1994).Third,the period of the coexistence of the information providing system before authorization and the appeals processing after authorization,the patent invalidation system and the trial decisions revision system(1994-2003).Fourth,the period of the coexistence of the information providing system before authorization and the information providing system after authorization,the patent invalidation system and the trial decisions revision system(2003-2014).Fifth,the period of the coexistence of information providing system before authorization and the information providing system after authorization,the appeals processing system,the patent invalidation system and the trial decisions revision(2014-present).The different combination of remedial measures in the five stages shows how Japanese patent system responded and adjusted to the social needs at different times and how Japan improves its administrative remedies for defective patents through trials and tribulations.Chinese Patent Law,unveiled in 1984,was revised in 1992,2000 and 2008.Chinese administrative remedies for defective patents mainly consist of the defect prevention mechanism before authorization and the defect remedial mechanism after authorization.Previously,the defect prevention mechanism before authorization included the appeals processing system and the public opinion system,while the defect remedial mechanism after authorization includes the revocation system after authorization and the system to declare the patent right invalid.Both appeals processing system and revocation system only existed for a brief period of time.And the current Chinese administrative remedies for defective patents only keeps the public opinion system and the revocation system after authorization.Compared with Japanese information providing system,Chinese public opinion system before authorization fails to screen out defective patents,for without specific regulations on execution it is reduced to be a rubber-stamp.Moreover,after patent authorization,the revocation system is the only administrative remedy for all subjects.Because of the lack of diversified remedies,it is very hard to institutionally limit defective patents to spur more technological progress.Only improving revocation system has little effect on boosting Chinese patent quality.When the Chinese Patent Law is going through the fourth revision,the Japanese experience merits our attention.It sheds light on how to improve Chinese administrative remedies for defective patents.First,learn from the Japanese information providing system to increase feedback mechanism and standardize the way to solicit public opinion.Second,diversify Chinese administrative remedies by drawing strength from the multiple Japanese remedies with different subjects.To be more specific,appeals processing system with non-specific subjects should be added to ensure public interest.The subject of revocation system should be limited to interested parties,as the purpose of the system is to settle the patent disputes of all the parties involved.