Research On The Burden Of Proof Of The Administrative Litigation For Patent Reexamination Board

In the time of intellectual property economy, our country can not be absen t, new development to achieve innovation driven country, is inseparable from the s upport of the law, “Where there is a right there is a remedy”,comprehensive, e fficient, quality of the judicial review system is the effective guarantee of promot ing the economic development of intellectual property rights. As the 18 th sessionof the 4th Plenary Session of the rule of law to promote all-round on the agen da, in accordance with the law to protect the intellectual property rights also gra dually reasonable, scientific, perfect, convincing, awe inspiring journey. The establi shment of intellectual property courts, a miniature of the Patent Reexamination B oard as administrative litigation defendant’s growth spurt is the intellectual property rights protection. In the new system has not been fully established, the premis e is not far away from the old system, the Patent Reexamination Board as a d efendant in administrative litigation, how the trial, how to judgment become th e focus of attention. The trial without evidence of the burden of proof has a s pecial position and role, the burden of proof of the reasonable setting is the pr econdition to realize justice. This is like a raging fire in the protection of intel lectual property rights in the process of development written the article, for thetype of patent cases especially the Patent Reexamination Committee as the de fendant of administrative litigation cases to analyze the content of the burden of proof, and selection are discussed in detail, in order to find the effective pat h of burden of proof in such cases a reasonable setting, improve the scientific,professional Patent the Review the Commission or the Trademark Review andAdjudication Board of the direction of administrative litigation, administrative proceedings to the trial to realize each litigant in the light of justice to feel.This paper is mainly from the cases, part of the classic cases selection is accumulated in the actual trial activities, mainly in the scope of the trial, the trial system, evidence system to analyze the content of anatomy, the selected cases in the theory circle and practice circle of protection of intellectual property rights has caused great controversy and discussion.For example, the following cited Shu Xuezhang’s "anti burning boiler" patent and Zeng Guansheng’s “mineral traditional Chinese medicine patent " are in the " common knowledge " burden of proof ", has a new breakthrough in professional and technical problems.The author focuses on the analysis of the burden of proof, litigation burden of proof, the range of issues in the article, and the combination of different content, litigants in the different stages of the trial evidence for different types, categorized in different stages of litigation, accordingly belong to different types of evidence, according to the different types of evidence, the distribution of the burden of proof is difficult to the arrangement of the burden of proof. Finally, the burden of proof in view of the reality and put forward reasonable suggestions and improve the main direction, the realization of such case to the fair and reasonable.The first chapter, Introduce Patent Reexamination Board of the cases and reflect the problems related to the Patent Reexamination Board, to make their own judgment to provide a large number of facts and evidences are described. In different stage of the proceedings will be distinguished, because the selected case is basically through the first trial, the appeal of the stage. Cite evidence, audio-visual materials, the statements of the parties concerned, expert witness that the different content of evidence in the trial, there are some cases will experience a retrial review, the Supreme Court case, the need for different stages of the analysis, find out the existing issues. Mainly includes the division of burden of proof is not clear, the content does not distinguish between different stages of the proceedings with the burden of proof, the confusion, the facts of the case evidence the burden of chaos and so on four aspects. The main function of this chapter lies in the selection of cases, the case, put forward the questions, provide material and basis for the allocation of the burden of the content below.The second chapter,The burden of proof of the Patent Reexamination Board, the plaintiff and the third party, the Patent Reexamination Board of the administrative litigation is belong to the category of special administrative action, but still can not be separated from the scope of administrative litigation, administrative proceedings the burden of proof in the case or the burden of proof burden in the administrative organs of the head is understandable. The beginning of the second chapter is focused on the burden of proof, the scope and legitimacy of the Patent Reexamination Board. The special nature of such cases is different from the traditional administrative litigation, but also in the plaintiff’s burden of enthusiasm and the burden of proof burden, sometimes even higher than the administrative organ’s enthusiasm and the evidential materials provided more fully, even more can show the core problem of the facts of the case. Analysis in specific cases, the plaintiff’s burden of proof is different according to the Patent Reexamination Board proposed in the first instance, review, appeal, retrial in different stage of the proceedings the burden of proof, classify, content of the burden of proof, according to laws and regulations, then analysis. In addition, in the administrative litigation cases in general, almost no or burden of proof problems are rarely involved third part, independent of the administrative procedure law provisions and the third part without the burden of proof. But in the patent right of administrative litigation, the third part with great civil interests, even it is hidden in the Patent Reexamination Board behind the participants in the proceedings, a careful analysis of the burden of the third part, has a different meaning for such proceedings, Thus this chapter is devoted to a section of the text summarizes third part proof of the legitimacy, burden of proof, evidence of the content.The third chapter from the perspective of transformation, from the second chapter of litigation participants to set and the distribution of burden of proof the facts of the cases evidence in the litigation involved, is divided into mainly includes "common knowledge" and "identification of technology" evidence, especially on the field of technology to identify problems. These contents are caused great controversy, on the "common knowledge" and "Technical identification" range is not clear, the burden of proof of evidence of who is more controversial, even if the court’s judgment is sometimes ambiguous, even weaken the boundary dispute, increase controversy. In addition to the above two kinds of burden of proof between the content, the final part of this chapter added burden of proof should pay attention to such as the judicial cognition and executive cognitive problems in personal, professional appearance is not evidence of the status of the submission process description of the problem and the administrative judgment in identification and analysis such as the contents of the burden of proof, reflecting the integrity problem in addition, to achieve a reasonable and comprehensive from the other perspective of analysis.The fourth chapter based on the different stage of the proceedings in the problem, in this chapter to find out the solutions and suggestions, Mainly for the content of the burden of proof in the first chapter, and summarized summed up the common contradiction in the evidence in the three or four chapter, the problem of burden of proof in such cases, put forward reasonable suggestions: Firstly, clear the parties the burden of proof; secondly, to differentiate between different types of burden of proof; Again, the "common knowledge" and "Accreditation" evidence, strengthen the technical level and ability of the judge; finally, improve the new patent administrative trial system with independent intellectual property court. On this basis, to promote the administrative litigation to go down the path of reform of professional identification.The article uses the comparative analysis method, case as the starting point, the theory combines the case to find the problems, analyze problems, find the problem and then find the problem solvings, the maximization of combining the theory with the practice, in order to benefit the perfection of the administrative litigation for Patent Reexamination Board in the burden of proof in practical.