Research On Administrative Confirmation Rules On Patent Rights

Patent dispute resolution mechanism consists of patent infringement dispute resolution system and patent administrative confirmation system.In the patent administrative confirmation system,if the accused infringer thinks that the authorized patent does not comply with the relevant provisions of the Patent Law and Rules for the Implementation of the Patent Law,he shall file a request for invalidation of the patent right with the patent administration department of the State Council,which shall examine the validity of the patent right.In the connection between the patent infringement dispute resolution mechanism and the patent confirmation dispute resolution mechanism,the people's court in charge of the patent infringement dispute case decides whether to suspend the patent infringement dispute case according to the specific circumstances of the case,waiting for the patent administration department under the State Council to make a ruling on the patent confirmation dispute case.As a civil law country,China's patent system implements the mode of separating the powers of "administrative confirmation" and "civil infringement",and has become the framework of "dual system of patent dispute resolution" or "dual separation of patent dispute resolution".Examination of patent invalidation request belongs to administrative adjudication,and the establishment of a special administrative adjudication system for patent invalidation request embodies the concept of administrative and judicial division in patent field,and contains the value pursuit of limiting the expansion of administrative power and judicial power.The examination and decision of the request for invalidation of a patent has certainty,fairness and execution.The decision to examine the request for invalidation belongs to the case where the notice comes into effect.When the notice comes into effect,the effective time point of the administrative act is consistent with the establishment time point,that is,the effective date of the examination decision is the administrative counterpart's receipt of the examination decision(presumed receipt date).In the patent invalidation procedure,it is suggested to set a "threshold" for filing an invalid case,and introduce a relatively substantial filing standard in the filing link of the invalidation procedure,which can refer to the filing standard of "the claimant has a reasonable possibility to have an advantage in the dispute of at least one claim" in IPR procedure,that is,in the dispute of at least one claim being declared invalid,the claimant's invalid reason and evidence reach the level of "preliminary advantage evidence" before being allowed to file a case.In the examination of patent invalidation procedure,the scope of ex-officio-examination should be appropriately expanded,which should be decided by the collegial panel after comprehensive consideration of the evidence presented in the request for invalidation procedure,the impact on public interests,the efficiency and cycle of examination,the possibility of finding out the facts,and the relevance between relevant reasons and evidence.Further relax the modification of patent documents after authorization without setting up a separate post-authorization revision procedure.Due to the suspension procedure,a large number of patents that should be invalidated have delayed the decision of invalidation,which has affected the public's use of public technology to a certain extent,which is inconsistent with the legislative value orientation of patent legislation aimed at encouraging invention-creation,promoting the application of invention-creation and improving innovation ability.Therefore,it is suggested to further improve the relevant system of suspension procedure of patent invalidation request.In part of the administrative litigation for reforming patent confirmation,usually the two parties with invalid procedures are the opposing parties in the administrative litigation stage.If the dispute in the litigation involves administrative matters such as rules and regulations,program design,and exercise of authority of the patent administrative organ,the patent administrative organ will have an independent interest claim.At this point,the patent administrative organ has the right to take the initiative to join the judicial proceedings.In view of the "quasi-judicial" features of the Patent Reexamination and Invalid Trial Department of the Patent Office of the State Intellectual Property Office in the trial procedure,it actively explores the "first instance and final trial" of administrative litigation on patent confirmation.