On The Perfection Of Patents And The Relief System In China

The resolution of disputes and the remedy of legal rights is an indispensable part of law system in every country. It is especially important to build an efficient system of dispute-resolution in a country ruled of law, such as our country, which is now undergoing numerous radical social changes. As we all know, when the society develops the legal right develops consequently. Only when there exists a sound system of remedy, the legal right can be in a true sense available to citizens. Otherwise no matter how many rights prescribed in a code, the country just declare it, not protect it.Patent right , as a kind of intellectual property, owns all the attributes of it. Besides, since the subject matter of patent right is inventions and creations, which is technologically complicated, abstract and irreplaceable, the legal rights of patentees can be more easily infringed. If the efficient remedy of such infringement can not be provided immediately to the patentees, it will do great damage to the initiatives of patentees and it is also bad for the science and technology to be widely used. In all, the perfection of remedy system of patent right has everything to do with the strong protection of patentees, our country's international duty to protect patent rights and the healthy development of our national knowledge economy. Compared to the long history of patent law in some developed countries, the patent law has only been carried on for 20 years. Though it has gone though two modifications and basically met the demands of TRIPS, it also has a long way to go.The author of this article who adopts the analysis method of comparison, on one hand has introduced to us the experiences of developed countries in making patent law, on the other hand has analyzed the present situation of our remedy system of patent rights and given his suggestions on the perfection of it.This article includes five parts:The first part focuses on the basic theory on system of patent remedy. It mainly discuss three problems:1. The definition of attributes of system of patent remedy;2. The need to build the system of patent remedy; 3. The function of system of patent remedy.The second part introduces the international law-making of patent remedy. It mainly concerns about TRIPS and some developed countries such as America and German. The author also makes a statement on the international development of patent system of remedy.The third part is the main part of this article, which has respectively made some analysis on three ways of patent remedy: civil remedy, administrative remedy and criminal remedy. Then the author fingers out the insufficiency of each and brings out his suggestions on the perfection of it. In civil remedy, first, the author thinks the system of patent remedy of indirect infringement should be builded. Though the indirect infringement of patent right is not prescribed in our code, it exists in our judicial practice. So The People's Court will have no uniform law to follow when handling such disputes and it will make a chaos in the judicial practice. Second, our legal system of damages should be perfected. At present, there are three methods of damages prescribed in our patent law and fixed-amount damages in the judicial interpretation of the Supreme People's Court. The author thinks in the judicial practice the patentees should be entitled to the choice of ways of damages so that their legal rights can be protected to a great extent. In administrative remedy, the author thinks that confiscation and cremation of illegal products should be included in the existing administrative measures. As for the repeating infringement by one person and infringement conducted by many people, the author thinks the patent administrative department should have a duty to take initiatives to investigate the infringement so that the illegal activity can be immediately prevented. In criminal remedy, the author thinks the imitation of patent should be punished by criminal measures, that is, some infringers with serious details should not only undertake the civil and administrative responsibility but also the criminal responsibility.