Legal Remedy Of Unfairness Problem After The Invalidation Of The Patent Right

Abstract:The patent invalidation has no retroactive for the executed judgments, the performance conciliation statement and the performance contract. However, the retroactive cases are mainly the patentee cause losses to others. And the patentee shall return the patent infringement damages, the patent license fees, patent right transfer fee if there are obviously unfair. There are three kinds of unfair situation which Invalid patent is not retroactive. The patentee caused the damages to other persons without compensation, which is clearly violation of the principle of fairness. The patentee does not return the patent infringement, patent licensing fees and patent transfer fee which is unfair. But the law does not make the provisions to the subjectivity of the patentee patent made clear, and the unfairness system is now controversial. When the patent invalid, apply the doctrine of obvious unjust mainly exist the patentee’s subjective judgment which is not clear. The basis of compensation or patent implementation costs which shall pay or return are not clear when the case is obviously contrary to the principle of fairness. The scope of compensation or patent implementation costs which shall pay or return are not clear. To solve these problems, the key is the basis of compensation or return. After the patent invalid, the unfair situation shall be respectively analysis, and find out solutions their basis. According to the relevant provisions of the tort liability law, pursue the liability of the patentee when the patentee causes losses to others. The patentee does not return the damages which obtained for patent infringement, should be done as unjust enrichment. After the patent is invalid, the patentee has the patent infringement damages without the legal basis, which should be returned to the original the infringer. After the patent is invalid, the patentee obtained the patent licensing fees or transfer fee are unfair, and patent license contract or transfer contract can be used as revocable contract processing. After the contract has been revoked, the relevant provisions of the patent right of the other party require the patentee return the property based on revocable contract.