Survey Of The Procedural Dilemma In Our Patent Invalidation

The procedures of patent invalidation may be called the procedures for the confirmation of patent. Countries all over the world have their own systems, but there are two main categories: the administrative review procedure and the judicial review procedure. The corresponding program in China is the examination procedure of patent invalidation by Patent Reexamination Board to answer the claimer's request for patent invalidation and the subsequent procedure of patent invalidation administrative litigation.In the current program of patent invalidation in China, one of the most serious problems is the dilemma that the patentee's impotence to defend the patent right and the difficulty to disaffirm many rubbish patent coexist. the validity of patent right has long been in a protean and unstable state. The situation renders patentee defending right in good faith and rubbish patents invalidation time-consuming and arduous. The basic reason lies in the redundancy, prevarication, and inefficiency of the current nullity procedure. The private nature of patent and civil nature of the dispute are ignored. Various distortions and dislocations arise from the institutionalized adoption of the pattern of administrative litigation.This article begins with two typical cases of the patent invalidation. Through analyzing and comparing the two cases, the present author clarifies the status quo and plight in China's patent nullity procedure. Furthermore, the present author categorizes such problems as too many trial-level,the circulation lawsuit,conflict of power. waste of administrative and judicial resources in the procedures for the operation of the patent nullity. And then ideal solutions are provided on the basis of the profound jurisprudential analysis of patent right,patent nullity examination,nullity proceedings etc, which are among the most significant and the most basic issues in the procedures of patent nullity. At the same time, jurisprudential base of reconstruction for nullity procedure is explored. Finally consulting the relevant institutional design abroad and opinions of Chinese scholars, the present author patent puts forward proposals and programs as far as reconstruction of patent invalidation procedure is concerned.