Study Of Issues Concerning Application Of Guidelines For Patent Examination In Patent Litigations

Guidelines for Patent Examination(hereinafter the Guidelines)belong to the State Council's regulations,which detail and supplement the provisions of the Patent Law and its Implementing Regulations.The correct application of the Guidelines in patent litigations or not by the people's courts not only has influences on the results of individual cases,but also plays a fairly strong role of judicial guidance.Therefore,it is necessary to ensure the correct application of the Guidelines in patent litigations.In the juridical practice,the people's courts,the patent administration department under the State Council and the parties concerned generally acknowledge the application of the Guidelines in patent litigations,whereas various sides have certain controversies on the basic applicable principle of the Guidelines to be followed,the interpretation of the specific provisions in the Guidelines and their applicable standard,especially the provisions having evolved during the multiple revisions thereof.As a result,many problems have arisen,and it is urgent to establish the basic principle and specific operation method of correctly applying the Guidelines in patent litigations.Based on the long-term dilemma in practical work,the author puts forward whether the Guidelines should be applied in patent litigation and how to correctly apply the Guidelines.Through the retrieval,selection,statistics and analysis of judicial adjudication documents,the universality,type diversity and controversy of the issue have been confirmed.Due to the lack of research on this issue in China,on the one hand,the author tried to draw lessons from the practice of extraterritorial jurisdiction;on the other hand,from the perspective of jurisprudence and the historical evolution of the Guidelines,the author confirmed the necessity and importance of properly solving the problem.Then,based on a critical analysis of existing viewpoints and practices,personal suggestions for the solution of the problem were proposed.Specifically,the major structure of this thesis includes four chapters.The first chapter discusses the status quo of the application of the Guidelines in patent litigations.First,it discusses the legal status of the Guidelines in patent litigations,specifically the legal hierarchy of the Guidelines,the fundamental circumstance of the application of the Guidelines in patent litigations,and the people's court's position on the application of the Guidelines in patent litigations.Second,the statistics and analysis of the application of the Guidelines in patent litigations are performed by means of the empirical research(retrieval and classification statistics).In the second chapter,the typical cases are analyzed following the above empirical research.The specific circumstances of the application of the Guidelines in current judicial practice are summarized,and the existing typical problems are summed up,so as to fill the domestic research gap in this field.The third chapter,through study of comparative law,explores the relevant situations of the application of the respective guidelines for patent examination in the litigation in United States,Europe,Japan and South Korea.Specifically,the legal status of the respective guidelines in these countries and regions,as well as the applicability thereof in the patent litigations are discussed,so as to provide reference for Chinese patent practice.The fourth chapter discusses the necessity of correctly applying the Guidelines in patent litigation from the perspective of jurisprudence,the self-evolution of the Guidelines and the demand of judicial guidance.It also establishes the position of strictly following and implementing the basic doctrine of “Law of non-retroactivity,observing old laws and ones favorable to the parties concerned”,stresses the importance of accurately understanding and applying the relevant provisions of different versions of Guidelines,and makes proposal of ensuring the correct application of the Guidelines in patent litigation.