Analysis Of China's Patent Reexamination Board's Position In The Administrative Proceedings In The Patent Invalid

According to the different litigant , our country patent administrative proceedings may differentiate for the different type。Two kinds of types patent administrative proceedings have the archery target to be different, must distinguish the treatment。However our country in 2000 revises "Patent Law" certainly not to carry on the discrimination to it, but is stipulated in the patent administrative proceedings the patent board of review all is the defendant, is suitable the administrative procedural law to carry on tries, also the court in tries in the process to have no right to change the patent board of review the decision。This article separately carries on the analysis to two kind of types patent administrative proceedings characteristic, pointed out two between exists the difference, proposed must distinguish the treatment in the judicial practice。And emphatically has analyzed the patent and the patent invalid announcement nature, pointed out in the patent invalid announcement, whether there is the dispute focal point is the patent and the patents cope size, therefore, in the lawsuit the bilateral litigants muster spectively be the patent invalid applicant and the patent person。Whether does the patent reexamine in the patent effective decision essence which committee member the office does is the patent which disputed to both sides whether there is and the extent of protection size one kind of ruling, but in the non- general significance administration decided, its status is comes between the ruling。At the same time, the patent board of review in the patent invalid administrative proceedings, is not the genuine formidable sponsor, the lawsuit result to it not substantive significance。Therefore, the patent board of review does not have to take the defendant in the patent invalid administrative proceedings。Because our country "Patent Law" to the patent invalid announcement nature localization deviation, caused in the practice to appear such as "the circulation lawsuit", the patent board of review has been unable to withstand the heavy burden and so on a series of questions。Simultaneously the author also carried on "Patent Law" the third revision main content has been carrying on the simple evaluation to our country, to third time revised in the manuscript to involve to the patent invalid administrative proceedings question carries on the analysis, the author had thought carried on third "Patent Law" revised although protected the certain positive role to our country patent, but regarding continuously puzzled our country the patent board of review's in patent invalid administrative proceedings status question, actually certainly not substantive improvement。The author inspected patent great nation and so on the US, Japan in view of this question solution way, unifies our country actual situation, proposed the different legislation suggested, can to puzzle our country by the time the patent invalid administrative proceedings to get up the positive role。According to the above proposed must entrust with the people's court to dispute the patent valid in the patent invalid lawsuit judicial authority, namely the people's court not only must make the trial in trying to the patent board of review's ruling, simultaneously should solve the right person "the entity right" the dispute, enhances the lawsuit efficiency; Has a side litigant in the patent invalid lawsuit, the patent board of review should not take the defendant, but is both sides which disputed by the patent takes the litigant; Meanwhile must act according to the different litigant in the patent invalid lawsuit to be suitable the different procedural law to achieve the better protection litigant entity right the goal; Along with science and technology changing with each new day, by the trial divorce , contract dispute judge which old had tries the specialized greatly strengthened patent case already the very inaccessibility judicial examination goal, therefore the author proposed was allowed to try out the patent case in our country the specialized jurisdiction , had the patent technology background by one batch judge to try the patent case, this also is the present many patents great nations general procedure。...