The Research Of Patent Invalidation Defense In Patent Infringement Litigation

As our country encourage the reform of the science technique and promote the innovation policies, more and more enterprises pay attention to the protection of their own intellectual property rights. For technical enterprises, patent becomes their key assert to develop and competent with others in the industry. More and more enterprises begin to pay attention to obtain the patent and build patent defense network, which result in the increasing suits of patent. Patent litigation in our country implements the principle of presumption of effective patent, which means in the patent litigation, the court has no right to reexamine the validation of the patent, but they shall presume that patent is valid, and judge whether there is infringement. If the patent need to be void, you should turn to the Patent Reexamination Board of SIPO for patent invalidation. It is usual that in a patent infringement lawsuit, the alleged infringer will question the validity of the patent right, in order to pass invalid patents and to achieve the goal of make themselves out of the lawsuit. As a result, the existing patent infringement litigation and the patent invalidation procedure of binary discrete system for patent infringement litigation has brought a lot of problems, hereinafter need to be further discussed.In the view of the problem that the patent infringement litigation involving the patent invalidation procedure. We discussed the judicial practice of Japanese, American and Germany and doing the analysis, we want to find a way to solve the existing problems in China. This article is made up with preface, body and conclusion. The body includes four chapters.Chapter one is divided into two sections, the first section describes the basic concept and theory of the patent invalidation defense, the second section puts forward the existing problems in the patent infringement litigation in our country and discuss these problems. Patent invalidation defense refers to that in the patent infringement lawsuit, the defendant thinks that the plaintiff’s patent should be invalid, thus advocate that the technology they are using does not infringed the plaintiff’s patent. About this case, different county has different way to solve this problem. Some countries allow the court to review the validity of the patent, but some counties are not. They need go to the corresponding administrative organ to file the request to invalidate the patent. And the court can be weighed according to the facts of the case to decide whether to suspend the trial or continue the trial. The second section mainly discussed the problem of patent infringement litigation of our country. The first is that when the patent was possible to be invalidated, the patent infringement trial will takes a long time. The second is the “Circulation Lawsuit”. The third is that the condition of suspend the trial is not affirmatory.Chapter two mainly analyzes the patent invalidation defense of Japan, America and German, combined with the existing problems in China in order to find out the breakthrough point of our country from learning lessons from foreign defense mode. In America, court can review the validity of the patent, and the result of the review can constrain the third person outside the case, and can invalidate the patent thoroughly. And USPTO also can review the validity of the patent. If the litigant arrest the judgment of the court and the decision of UPSTO, he can appeal to the CAFC. So CAFC can unified grasp the standard of the patent and avoid that court and USPTO make the different review about the same patent. As to German’s patent system, the state court in charge of the patent infringement litigation and the Patent Court of German is in charge of the patent invalidation litigation. If during the patent infringement litigation, defendant proposition that the patent should be invalidate and it’s illegal, he can request the court to review the efficacy of the patent, he have to file the patent invalidation litigation to the Patent Court of German, and the court which judge the patent infringement litigation should suspend the trial until the Patent Court of German finally decide the efficacy of the patent. As the patent invalidation litigation is a kind of civil action, not like our country, so the procedure wouldn’t takes too much time. For Japan, in 2004 they amended their patent law and add the patent invalidation defense, and allowed the court to review the efficacy of the patent, if the court judge that the patent should be invalidate, and the court will judge that the defendant don’t infringe the plaintiff’s patent and wouldn’t support the plaintiff’s request.Chapter three mainly analyze the patent infringement litigation modal of German, America and Japan. And try to use the experience of the three countries for reference. And in my opinion, there are three ways to solve the current problem. The first way, court can judge the efficacy of patent, just like America does. The second way, try to shorten the time that administration review the efficacy of patent. The third way, introduce the patent invalidation defense of Japan, and allow the court to judge the efficacy of the patent, and the judgment of this patent’s efficacy only can constrain the plaintiff and the defendant. The second section discussed the advantage of introduce of patent invalidation defense from Japan. It won’t have a greater impact on our existing patent system, and it can makes the defendant get rid of the charge of patent infringement in short time. And they don’t have to go to the Patent Reexamination Board of SIPO to invalidate the patent. And it can also reduce the stress of the Patent Reexamination Board of SIPO, and the quantity of patent invalidation will be lower.Chapter four is talking about some specific recommendations to improve the patent invalidation defense. And discussed the conditions of use patent invalidation defense, the legal effect to use the defense, and coordinate patent invalidation procedure, and discussed the relationship between patent invalidation defense and prior art defense, patent misuse defense. The first section mainly discuss the judicial practice make the breakthrough to the current patent system. It shows that there is the trend that allow the court to judge the efficacy of patent. And the second section discussed the specific suggestion of improve the patent invalidation defense. The author thinks that when the court to judge the efficacy of the patent, they could treat themselves as the examiner from Patent Reexamination Board of SIPO, and use the examiner’s principle to judge the patent’s efficacy. And the decision that court made about the patent just constrain the plaintiff and defendant. If they want to validate the patent, they still have to go to the Patent Reexamination Board of SIPO, only when the Patent Reexamination Board of SIPO decide that the patent is invalid, then the patent is invalid, and the result of reexamination can constrain all the people. Then, the author trying to discuss how to coordinate the court and the Patent Reexamination Board of SIPO to avoid the conflict about the patent’s efficacy. And analyzed the relationship between patent invalidation defense and prior art defense and patent misuse defense.