Perfect China's Patent Invalid System

An patent invalid litigation is an action that against the State Intellectual Property Office's decision or declaration of the patent reexamination. Our current legislative practice and doctrine generally defined invalid patent litigation as administrative proceedings. However, such a void in the judicial system arose many problems in practice prevalent, such as litigation delays, invalid patents are not cleared up in time and the patent reexamination board's embarrassment as a defendant etc... In response to this situation, some scholars issues that the patent invalid litigation involving the controversial privacy should be decided by the people's court hearing in the civil proceedings, and cleared the patent invalid nature of the civil litigation and the corresponding legislative proposals: Or instead the existing law that the patent reexamination board as the defendant of it as a witness or a third person treated litigation; or construction patent invalidity of Final Appeal trial of the three models, the patent reexamination board as an institute of first instance; Or maintain the second model, merger the trial court of the current patent invalid cases and the patent reexamination board as a patent invalid Court of First Instance; or construct patent court as Court of Final Appeal, and the first instance to the Beijing First Intermediate People's Court or the Beijing First Intermediate People's Court and the patent reexamination board after the merger; Or a three-trial appeal, the patent reexamination board as a first instance institutions, the Beijing First Intermediate People's Court as a second trial of institutions. There were also scholars challenge that the patent invalid litigant is completely unrelated to patent's civil nature, implicit in the nature of attributes behind the phenomenon is still the administrative attributes. Because of the complexity of the patent invalid system, countries in the world with different models, some of them will be put it into scope of the arbitration, but the general direction is towards to a rapid solution the dispute in order to better protect the interests of the franchise as well as the public's interests.In this paper, with starting from the nature of the patent, analyses the purpose and legislative history of the patent invalid systems comparing with the patent invalid system of some developed Western countries, in combination with the latest development trends in intellectual property rights, to propose a number of shallow view. Mainly in the public interest litigation and make the proceedings of the patent invalid lawsuit,convergent the infringement and invalid litigation in order to improve judicial efficiency and promote the justice, besides, it can also better protect the public interest, suitable for China's national conditions, at last integrate the latest development of intellectual property rights on the invalidity of patent litigation model and put forward my own views.In the face of the third revision of Patent Law, revise of the patent invalidity system in the strong winds and high waves, the paper doesn't expect adding fuel to the flames, but only in order to speak my own voice.