Defense Of Definite Invalidation Of Patent In The Japan And Its Inspiration To China

The nation which adopts the function-power separation principle for the patent system faces one problem that is the patent infringement litigation is disconnected with the patent interpleader procedures, which further causes low judicial efficiency of patent infringement litigation and the party’s litigation exhaustion. Japan has the closest function-power separation mode with China and solves these problems through the defense of definite invalidation of patent. The defense of definite invalidation of patent means that the patent right involved shall be announced to be invalid in patent infringement litigation according to patent invalidation procedures; and the patentee can’t exercise the right to the other party.Then, could China simulate Japanese defense principle of definite invalidation of patent? Aiming at this problem, firstly, this paper introduces the significance and basic question of defense of invalidation of patent; Part2introduces the means, origin, legislation meaning, applicable condition and disadvantage of Japanese defense of definite invalidation of patent; Part3illustrate Chinese defense of invalidation of patent, analyzes its problems, and points out the necessity of reform; Part4comments and analyzes the current existing reform concept; Part5discusses the feasibility of constructing the defense principle of definite invalidation of patent by China.The significance of this paper in reality lies in that it explores Chinese flexible reform measures in current stage from current patent policies in order to solve the disadvantages of the function-power separation principle.