A Study On Administrative Litigation Of Patent Ownership Determination

Since the promulgated and revised several times, the Board of Patent Reexamination was to be a defendant over and over again. Particularly in recent years, there is a clear upward trend. This situation has brought many problems, such as the Board of Patent Reexamination overwhelmed in the work of review and to be the defendant. And also in the lawsuit proceedings, the original "middle referee" role of the Board is under attack. The Board had to be one party of the invalid patent applicants. According to the law, the decision to review the patent is both administrative and judicial protection and administrative relief before. But what problems will coming out from this arrangement in practice? For example, after the court revoked review the decision of the Board of Patent Reexamination, the Board made another decision exactly the same. This resulting in circulation; and the define of the patent involved the cross of the administrative litigation and civil litigation. How to deal with this cross there is no unified understanding in the academic world. July 1,2009, the Supreme People's Court has just implemented a provision officially, .In this provision, the decision of the review was set off into the domination of the court of the intellectual property. But this division didn't make the function of the trial very clearly. It caused a controversy in the academic for in the case of the Board to be the defendant with the civil proceedings or administrative proceedings. How to resolve the patent litigation is indeed the right, is the focus of this paper.In order to solve the problem, the author analyzes the administrative protection of patent rights first, and ensure the protection of the rationality of administrative litigation, by analyzes patent rights ownership determination's quality. Then obtained its non-civil property, and thus should be protected by rather than the civil proceedings. The author also put forward its own proposal, that the patent administration in China has established the system with civil action to resolve civil and administrative litigation patent cross-cutting issues, and by improving the jury system to resolve the patent litigation relating to patent technology executive part of the problem. In addition, by comparing the advantages of patent litigation in the United States and Japan, the courts must have the right to change the decisions of patent review. This can solve the administrative protection of patent rights and ensure protection of administrative proceedings before the cycle of proceedings.This article is divided into four parts, the first is about the patent right and the relief system with an overview of the patent right define and the meaning of patent administrative litigation. The second part concludes the current patent system theoretical analysis of the right to relief, from the patent special property right fit with the executive power, to the patent and administrative protection of the comparative advantages, and also the requirements of international conventions. This reveals three aspects of administrative protection of patent rights is indeed reasonable. In the meantime by qualitative analysis of the patent right define non-civil property, the scope should be included in administrative proceedings. The third part is about the current situation through the interpretation of patent rights and ensure our right to the patent laws and regulations do reflect the provisions of the patent system is indeed built with vacancy. Also it introduced the related recommendations of experts. Some methods to consummate the Patent define administrative litigation bring out in the last part. That is to establish the administrative litigation with civil litigation. In operation, there are three main approaches in the current practice, and propose a set of professional patent jury system to perfect idea. This is to resolve the current the interface between the patent reexamination decisions and the patent administrative litigation. The court also granted the right to change the decision of the patent review to address the cycle of litigation issues.