Comparative Study On Patent Invalidation System Between Chinese Mainland And Taiwan

Ever since the problems of “Litigation drag” and “Loop suit” showed up,theoretical and practical circles began to analyze the underlying reasons to find out the right way to change the situation. Although The Patent Law of the People's Republic of China(“The Patent Law”)has been revised for three times,there was no resolution of the problems,nor the reforms of the latest revision,which did not focus on the Patent invalidation system either,probably because of the heated debate over the nature hereof. Patent right,as a product of integration of legal and technical,which belongs to proprietary,is an absolute right,also,it refers to public interest,which is particularly apparent for the Patent invalidation system.Consequently,discussion on the nature only is not enough to improve the patent invalidation system.Taiwan also had the “Litigation drag” problem in patent-infringement dispute,but soon after the Intellectual Property Court was set up,dual-track system came into force,which authorized the Civil courts to judge of the patent validity in patent-infringement dispute.Although the judgment is non-finality,it has played a great role in enhancing the efficiency of trial. Additionally,due to the differences of Administrative Procedural Law between Mainland and Taiwan,Taiwan do not need to deal with “Loop suit” in the Administrative Proceedings in which the defendant is also administrative organ. As the legal systems of Mainland and Taiwan are very similar,this article tries to compare their patent invalidation systems and determine the feasibility of the dual-track system,in order to make suggestions on the resolution of “Litigation drag” and “Loop suit”.The article contains following sections:Part one refers to the origin of the invalid patent systems of Mainland and Taiwan,including the discussion of the common problem they both encountered,that was the value conflict between justice and efficiency. The main disadvantage in Mainland is the inefficiency of litigation, on the contrary,the problem in Taiwan is the lack of justice of cases caused by their inflexible law.Part two refers to the fundamental of the invalid patent system. Starting from the instability of patent right,which is the reason for the existence of the system. Then, comparing the merits and demerits of either side from the view of cost and benefit. The last sectionfocuses on the distribution and restriction between executive power and jurisdiction, including the question whether the court should judge of the patent validity admitted by Patent Office.Part three refers to the development trends of patent invalidation system of Mainland and Taiwan. The main emphasis is the operating effect of the dual-track system of Taiwan,presenting its achievements and problems through data analysis,which provides example for Mainland. This part also includes the discussion on related issues of theoretical circles in Mainland,on the purpose of supplying legal basis for the improvement of invalid patent system.Part four proposes several reform suggestions on invalid patent system of Mainland.Section One refers to the basic spirit guiding the reformation of the system. Section two and three detail the framework of dual-track system and the resolution of “Loop suit” separately.At last,the paper proposes that,it is necessary to strengthen and improve the function of jurisdiction in invalid patent system as well as the whole patent system.