A Study On The Judgment Of The Validity Of Patent In Patent Infringement Procedure

When the alleged infringer propose the patent right is invalid in the patent infringement procedure,allowing the court to examine the validity of the patent and to verdict the infringement or not on the basis of the determining of the effectiveness of the patent,to avoid forcing the patent infringement procedure waiting for the validity results of the patent delay account of the invalid patent procedures,and from the legislative power to give the court the right to judge the validity of the patent in the case.However,while allowing the court to examine the validity of the patent in the patent infringement procedure,it is necessary to insist on the relativity of the judgment of the validity of the patent right and not the effect of the world.This article suggests that we can learn from the experience of foreign countries,it is unrealistic for the current patent law system to directly follow the United States to make the court to dominate the determination of the patent right,and we can learn from practice of Japan,introducing "the principle of defense of invalidation of patent " in the patent infringement procedures,so that the court determine the legalization of the effectiveness of patent right,the patent right,defense of invalidation of patent,does not need to be made on the basis of the request of a patent invalidation,can proposes defense of invalidation of patent for the invalidity of article 65,paragraph 2,of the Patent Law Regulations" At the same time,the "Information Coordination Mechanism" between the Court and the Patent Reexamination Board will be introduced,introducing the "dispute elimination principle" in the patent right to determine the effectiveness of the patent and comprehensive promotion of intellectual property special court model and other supporting reform measures to effectively avoid the "patent conflict" of the patent right judgment owing to the introduction of patent rights" defense of invalidation of patent ",the result of the validity of the patent right and the "regional conflict" on the result of the civil tort procedure.At present,China is still using patent infringement procedure and patent invalid procedures binary separation system,but the court tried to indirectly examine the patent rights in patent infringement litigation in order to improve the efficiency of litigation,reduce litigation costs of litigants and avoid the waste of judicial resources,although it can alleviate the current problems of settlement mechanism of China's patent infringement,but our legislation has not yet given the court the right to determine the validity of the patent,nor improve the supporting mechanism so that it may bring more risks,such as the "civil conflict" on the validity of the patent right,the result of the validity of the effectiveness of patent right and the "regional conflict ”on the results of the patent infringement procedure,and also cause the existing patent Breaking the integrity of the legal system and the invalidity of the patent right,but also cause damage to the integrity of our existing patent law system.So the plight of effective judgement of the validity of the patent in patent infringement procedure in China,on the basis of the judgment that the court can not fully assume the validity of the patent right,it is necessary to solve the plight by introducing "defense of invalidation of patent " in the patent infringement procedure.