Research And Analysis On Issues Of Patent Administrative Litigation

Administrative litigation in China's patent system, is being widely criticized by academics and the judiciary was undoubtedly the Patent Reexamination Board of the identity of the accused, patent validity, patent review committee only playing the role of the middle and passive referee, but precisely and because This referee acts to make the transfer to its own contradictions, at the same time is incredible, with the Chinese patent administration system for the stagnation in the litigants. In addition, China's patent review of the scope of administrative litigation, litigation and other questions are still there are many differences, recycling lawsuits, a virtual litigation continues to long-standing phenomenon, not only greatly hinder the development of China's patent system, but also threatening the course of justice and the full realization of procedural justice.In this article, the authors combined these three countries USA, Germany and Japan in the patent administrative litigation system, the experience and China's actual situation, from the theoretical and empirical point of view of the patent administrative litigation system is now China's major flaws and loopholes discussed one by one, its causes of a more detailed analysis, and the patent administrative litigation system in China make recommendations with a view to the improvement of the system to make modest means. From the structure will be, except for the introduction and conclusion, this article is divided into four chapters:Chapter I: an overview of the patent administrative litigation. This chapter first defines the concept of the patent administrative litigation in the dispute as a result of the ambiguity of the concepts of justice caused problems to a certain description, combined with judicial practice of some of its re-definition of. Second, the assessment of China's current patent administrative litigation in the party system, the patent review committee as a legal status of the defendant's embarrassing to do a simple narrative. At the same time, for the patent administrative litigation cases in the scope of the review proceedings, the author from the "legitimacy" and "reasonableness" discusses two aspects of the comparison that the patent administrative litigation conduct physical examination is necessary and feasible. Part III of this chapter is the most important chapter discusses a theory - patent litigation the interests of lawsuit inspection. The interests of lawsuit classic in Procedural Law and the theory is extremely important theoretical, but very little research in this section, the authors try to introduce the theory of patent administrative litigation proceedings, through discussion with the decision to form the interests of lawsuit rights function to to explain the theory in the patent administrative litigation in the importance, namely: well connected to substantive patent law and administration of substantive law, while able to better determine the scope of administrative jurisdiction.Chapter II: outside the national patent administrative litigation system overview. By the United States as a typical Anglo-American law countries, and in Germany and Japan as a typical civil law countries, the patent administrative litigation system in a certain study, and summarizes the major powers of those rights for a series of advanced experience of the author in the fourth Zhang has made significant recommendations for reference.Chapter III: China's current patent administrative litigation in the confusion. A common phenomenon in this chapter from three start with, profound analysis of China's current patent administrative litigation and shortcomings evident in Mishap. First, the current chaotic proceedings to challenge the jurisdiction of, and the Patent Reexamination Board to bring the proceedings as a defendant questions the jurisdiction of assessment, in this section, the authors propose a "patent review committee return to the" point of view to look forward to change the current situation, reducing Patent Review Committee should not have lost some of the respondent burden, and better commitment to the sound development of the patent system. The second part of the analysis of the current most common and most helpless of the strange phenomenon - the patent litigation cycle. Generated by analyzing the incentives, once again demonstrated the patent review committee as the defendant's unreasonable, while, for some domestic scholars have pointed out the relevant solution approach to a certain generalization and analysis. The final part of this chapter, the patent describes a certain malicious lawsuits, patent malicious lawsuits often involve a continuous valid patent infringement litigation and patent litigation, not only a waste of human and financial resources of society, but also to the judicial authority of malicious provocation.Chapter IV: Perfecting the patent administrative litigation system thinking. This chapter, the patent administrative litigation, the party system as the entry point, intended to perfect the patent administrative litigation system made useful suggestions. It should also be clear that any measures can not exist in isolation, but also should have a more complete supporting measures. Thus, in the advanced experience at home and abroad, while considering our diverse topography and the characteristics of civilization, the authors propose to give the court commuted the judicial power and the establishment of anti-indemnity system of the recent reform measures, and the realization of the parties and the establishment of the patent litigation court vision .