Dilemma And Choice: Discussion On Several Problems Of Our Country's Patent Administrative Procedure

Patent system plays an important role in the industrialization realization process of all correlative countries in 19th and 20th century. Now it has become a whole set of perfect system. It has accelerated the quick development of science technology and economy, and has accelerated the great progress of human society. The status of the patent administrative relative people is unequal to that of patent bureau in the patent checkup process, the patent bureau is in the green tree and the patent administrative relative people are in the dry tree. The administrative power of the patent bureau must be supervised and restricted by another kind of power. To supervise and restrict the patent administrative power exertion of the patent bureau, corresponding systems are designed in the patent system of most countries in the world today. And in our country the patent administrative procedure system is a kind of system to supervise and restrict the exertion of the patent administrative power. Up to now, no papers have introduced the systematic theory analysis of the patent administrative procedure system.Considering the dilemma which our country patent administrative procedure is facing to, the writer uses the overseas experience for reference and analyzes the theory and reality of the patent administrative procedure. In this paper a choice has been made to improve and perfect the patent administrative procedure system of our country. There are four parts in this paper. In the first part, the patent administrativeprocedure conception is differentiated and analyzed, and its property is opened out. The patent administrative case kinds are classified reasonably, and the patent administrative procedure system of Japan and German is introduced simply, as well as the patent judicature checkup of America. In the second part, the writer expatiates the theory foundation of the patent administrative procedure from many aspects, such as human rights guarantee, the right and duty balance theory between the patent administrative department and the administrative relative people, the restriction and balance of the patent power, the legal principle of the patent administrative permission, and so on. In the third part, the writer analyzes the reality dilemma which the patent administrative procedure of our country is facing to. There are many problem in practice, such as the little amount of the patent administration case, the lack of judgment strength, the imbalance of area development, and so on. There are also many problem in theory, such as the dispute of whether the patent invalidation procedure belongs to administrative procedure or civil procedure, the deviation of the procedure domination of patent administrative case between the theory and the practice, what efficient ways should be taken in the cognizance of the professional and technical problems in the patent administrative case, and so on. Considering the problems, the writer brings forward the choice to reform and perfect the patent administrative procedure of our country. The choice is to reform the patent invalidation procedure and to strengthen the patent judgment strength in the current phase. And the essential means to solve the problems is to establish patent courts in our country. In the concrete establishment of patent courts, the writer brings forward his own elementary design. The design is to establish the senior patent court which is in the same grade as the senior court and to establish the regional patent court which is in the same grade as the secondary court. The establishment can use for the reference the system reform of the People's Bank of China in 1998, and our country can be divided into several huge regions.