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Survey On "Cycle Action" In The Patent Invalidation Action

Posted on:2012-05-01Degree:MasterType:Thesis
Country:ChinaCandidate:C R LiFull Text:PDF
GTID:2166330335488134Subject:Law
Abstract/Summary:PDF Full Text Request
The dilemma mentioned above is a big problem in the action of patent invalidation.Two typical cases give us a profile of the problem. The concerned parties take great pains over the repeated action; the courts have no right to declare the validity of the disputed patent, even though they have made full investigation and find out the facts. That's why Beijing Higher People's Court took a reform: the court can decide the patent validity in the judgment. Though this reform was stopped by the Supreme People's Court, it brings us the hope to end the dilemma.Studying on the history of the patent law, we can see that we did not regulate the concerned litigation soundly by law; even did not we discuss it in the theory thoroughly. The interpretation of the Supreme People's Court classified the concerned litigation as administrative litigation. This sowed the seeds of the concerned problem.However, when we mention the patent essence, more and more people recognize it as private right. Intellectual work derives the patent actually."Law confirmation"is only the formal factor instead of decisive factor. Actually, in the declaration procedure of patent invalidation, the concerned parties display their own opinions and proofs. The Patent Re-examination Board acts as the judge. The whole process is quasi-judicial process actually. On this base, the following litigation, as the remedy of the former, should be similar to civil litigation. In this way, we obey the patent essence, and can resolve the concerned problem.On the discussion above, we come to the conclusion that we should enable the court to decide the patent right. The reform should be taken on the ground of our national conditions. The professional advantage of the Board should be considered fully. At the same time, the concerned experts should be brought into the declaration procedure and the litigation procedure. Even more, we can go further to establish Intellectual Property Court. Under the unified standard, all the disputes can be solved in the court system totally.
Keywords/Search Tags:Patent, Invalidation Action, Cycle Action
PDF Full Text Request
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