Discussion On The Announcement Of Invalid Patent Right Of China

The 4th item of 41th article of TRIPS agreement reading:"Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases."In 2000,the people's republic of China amended the《patent law of people's republic of China》to be in exact accordance with the standard of the agreement, then the administrative decisions of the committee of patent review submit to the review of jurisdiction.According to the provisions of 45th, 46th article of the patent law, after the patent is awarded ,any unit or individual could ask the committee of patent review to announce the patent invalid if they believe the award of patent does not comply with the provisions of patent does not comply with the provisions of the patent law, the committee of patent review shall examine the request and come to the conclusion timely, if the unit or individual refuses to accept the decision, he can take the case to the court at a place of jurisdiction within 3 months after the receipt of the notice.The above mentioned is the system of announcement of patent invalid which the article mainly talk about. According to the current patent system and judicial structure of our country, patent invalid and patent infringement are separately tried by administrative department and judicial department, the announcement of patent invalid can still be taken to courts, and in administrative proceedings afterwards, courts don't have right to fix and decide patent valid, patent validity still be decide finally by patent administrative departments. If parties of cases refuse to accept decisions of patent administrative department, they shall have the right to take cases to courts again.Therefore, in the current patent protective system, the long terms of disputes settlement, the different criterions of legal enforcement and the circulations of lawsuit bring side effect to the interests of patent holders, relative parties and social public.The reasons of resulting in the above mentioned problems is the final ruling power of patent invalidity is commanded by patent administrative departments. The committee of patent review is belong to administrative organs and exercises the administrative power, therefore, the lawsuits that patent holders take to courts due to unacceptance of decisions of committee of patent review are administrative proceedings. However, according to the theory of"judicature adjudge finally", administrative courts don't have right to adjudge patent invalidities finally, according to the related provisions of administrative procedural law", courts can only maintain or cancel decesions of committees of patent review, courts don't have right to adjudge patent validities directly patent administrative departments adjudge patent validities finally.Nowadays, some scholars believe that patent is one kind of private, property right, property rights should be adjudged finally by jurisdiction, therefore, the proceedings afterwards should be civil proceedings, in civil proceedings, courts have right to adjudge effect of property rights directly.With the research method of comparison, the article attempts to analyze the direct reasons of unreasonable phenomena existing in practices of administration and judicature from the perspective of analysis of character of announcement of patent invalid proceedings. At last, the article comes to the legislative suggestions to solute the above mentioned problems and proves the suggestions.By doing comparison analysis, the article comes to the conclusion that: in view of the many characteristics of intellectual property right, the establishment of the courts of intellectual property rights which have the exclusive jurisdiction to the disputes is the request of resolving the above mentioned problems; In consideration of the lack of reforming environment and the urgent necessity of resolving the problems, in order to solve the problems more efficiently, we should classify the lawsuits caused by patent valid into the administrative lawsuit, and submit the cases to administrative courts, with reference to the related provisions of the field of administrative law, courts are awarded with the rights of changing and confirmation of patent validity, courts have the right of final decision of patent validity, the second trial decisions are final.The concrete practice is that a special administrative court is established to try cases of patent invalid announcements in the first middle people's court of Beijing and the supreme people's court of Beijing. The court is composed by the competent patent technique experts and competent legal experts and try the cases of patent invalid of whole nation unitedly. To the disputes of patent invalid, whether the patent valid or invalid: after the trial, the court can adjudge directly. If parties of proceedings refuse to accept decisions of the first middle people's court of Beijing, they could take cases to the supreme people's court of Beijing. The special administrative court of the supreme people's court of Beijing have right to make the final decisions of patent invalid cases. During the proceedings, two parties are patent right holders and relative patent persons. With reference to notices of courts or invitations from plaintiffs or defendants, the committees of patent review appear in court as witness and elaborate their own views to patent invlidities.