On The System Of Examination Ex Officio In Patent Reexamination Procedure

Patent reexamination system was an important system of patent law in our country,the Patent Law and Rules for the Implementation of the Patent Law made rules that patent reexamination procedure was providing relief for patent applicant after the patent application was refused,it was the attribute of relief;But,in Guidelines for patent examination,it made rules that the patent reexamination board could ex officio made substantive examination for the review case,it had the continuation of the examination procedure.The attribute of relief and continuation of the examination procedure together constitute the double attribute of the patent reexamination procedure.In practice,as the continuation of the nature of the approval lack of property on the basis of the law,the rationality of the update caused a lot of controversy.Base on the double ability of the patent reexamination procedure,in the reexamination procedure,the patent reexamination board not only could exam the content requested by the parties,but also could exam the obvious substantive defects outside the request.To a certain extent,it could improve the quality and stability of patent licensing,avoiding unreasonable extension of approval procedures,but patent law and relevant laws and regulations did not limit the scope of the review,patent reexamination board was owned more power,which was adverse consequences to the parties.Especial in these years,with the more following to the power and the add to the patent reexamination,the problem of the ex officio in patent reexamination procedure became the hot question between people.So it was necessary to discuss the reasonable of ex officio and the existing problem of ex officio.This article was proceeding from the concept and characteristics of patent reexamination,it has the attribute of quasi-judicial,relief and continuation of the examination;and then compare the ex officio with the extraterritorial system,analysis the rationality of the ex officio in China.It came to conclusion that we should put the relief attribute on first place,in addition to patent approval.Subsequently,this article analyzed the problems existing in the process of Patent Reexamination,for example,it was difficult to define the scope of the review and convergence of review,review procedures and conflict between authority and request and so on.At last,Finally,some suggestions are put forward to balance the interests of patent applicants and patent examination and approval resources.Grasping the legal nature of patent reexamination procedure?the function of Patent Reexamination procedure and perfecting the patent reexamination procedure could endure to the protection of the legitimate rights and interests of the claimant,but improved the quality and rights of the patent reexamination board,avoiding Unreasonable extension of the approval process.