Discussion Of The Improvement Of The Utility Model Patent Evaluation Report System In China

The utility model patent system shows a strong vitality since the day it was produced.In order to maintain the advantages of utility model patents,when reviewng the utility model patents, most countries choose the formal examination. This has resulted in instability of the utility model patent rights. Therefore, in the second revision of the Patent Law, the the search report system was added.The search report system gradually exposed a number of disadvantages in the course of practicing,for example, the legal status of the search report is not clear,the range of people who have the right to make request is limited, the search report only evaluates the novelty and creativity, etc.In order to overcome the defects of the search report, the third amendment of the Patent Law has been completed on December27,2008. In this revision, the "search report" system has been changed to "patent evaluation report" system. Implementing Regulations and Review Guide also amended to adapt to the new Patent Law, and this change becomes one of the highlights of the new patent law. This change is not only the change of name, but also has great improvement in essence, and is a response to those problems arising from practice. The revised Patent Law defines the the legal status of the patent evaluation report, expands the range of the the people who have the right to make request and almost all the contents which can make the patents invalid can be found in the patent evaluation report.Patent evaluation report system has overcome many of the deficiencies of the search report system, but there are still some problems worth discussing and improving,for example,the legal status of the patent evaluation report doesn’t match to its actual responsibilities, the range of people who have the right to make request is still too narrow, the person who has the right to make request lacks of right to be heard. Overcoming the flaws of the patent evaluation report system will give full play to the role of this system.And this is the main purpose of this study.In addition to the introduction and conclusion, the paper is divided into four parts.The first part describes the process of establishing the utility model patent evaluation report system in our country.This section introduces the development of the examination mode of utility model patents in our country and we can know the defects in the utility model review model. Followed by that,this section points out the need of the introduction of a search report system and analyzes of the problems exposed by the search report system in practice in order to indicate the necessity of introducing the system of patent evaluation reportThe second part analyzes the patent evaluation report system on the revised Patent Law, pointing out the improvement of the patent evaluation report system.Then the section analyzes of defects of the patent evaluation report system which are still exist.The third part compares and analyzes the Search report system of utility model of Germany,Japan, South Korea, France, Austria, Chinese Taiwan and other countries and regions in order to derive some useful experience related to our system improvement.On the basis of the experience of other countries and regions experience,the forth part put forward proposals to refine the system to overcome the defects of China’s patent evaluation report system, for example, patent evaluation report should be a necessary condition of a utility model patent infringement lawsuit, the range of the the people who have the right to make request shoud be expanded and we shoud increase the opportunity to to present views, and gradually establish a judicial remedy.