A Study On The System For Settling Disputes In Patent Invalidation

A dispute in patent invalidation refers to controversy between petitioner of patent invalidation and patentee when the petitioners find a granted patent right does not confirm to the rules of law, then file a request to the relevant department in order to announce the patent right invalid. According to the "Patent Law" in China, the system for settling disputes in patent invalidation is a kind of Administrative-Justice double system mode, which involves two parts, the patent invalidation procedure and the patent invalidation proceeding. The Patent Re-examination Board takes the role of an unbiased judge during the patent invalidation procedure to make out a decision on the effectiveness of a patent right, however, the Board then turns to be a defendant in subsequent patent invalidation proceeding when a party concerned dissatisfied with the decision. The change in the role and position the Board takes is unfair to both parties concerned in the dispute. Secondly, despite the Board is a defendant in the lawsuit, it is not an interested party, whereas the real interested party concerned in the dispute lost parts of rights to claim their rights properly. Practically, such resolution mechanism may result in "circulating-litigation", reducing the efficiency, wasting judicial and administration resources, as well as the rights cannot receive timely protection. On the base of the reality in our country, this essay tries to propose ways to improve the existing system for settling disputes in patent invalidation by firstly, to add a pre-procedure before the patent invalidation procedure. The pre-procedure aims at making an evaluation report on the controversial patent instead of depriving a patent right directly, thus to give the petitioner and the patentee enough room to reach a accommodation. Secondly, to restrict the conditions for second instance, that is, only when the court sentences to support the decision made by the Board that the patent is invalid, or the court sentences to withdraw the decision made by the Board that the patent is of effectiveness can the parties concerned resort to a second instance. The suggested improvement is within the national conditions and the rules of law, hence it can be realized, and can help to equally protect both interested parties’rights, to avoid "circulating-litigation", to save judicial and administration resources.