Research On The Temporary Protection System Of Invention Patent

China adopts the patent examination system of “early disclosure and delayed review”,which means after preliminary examination,if it is considered that it meets the basic requirements for patent application,the invention patent application will be disclosed for 18 months from the date of the submission of the application.After the patent application is disclosed,the third party can obtain the technical information disclosed in the application documents and apply the patented technology.At the point,the patent applicant cannot use the trade secret to protect the invention because of the disclosure of the application documents,and will be in a state of "rights vacuum",since the patent rights is not granted.For these applicants,there is no way to protect them from "rights vacuum" and take actions to claim for stopping applying the technology and damages.In order to solve the problem of "rights vacuum",Article 13 of the Patent Law of the PRC grants the patentee the right to claim for the appropriate use fee.This fee is what people pay for their use of the patent technology in the application submitted during the time from the disclosure of the application documents and the patent grant.That is the temporary protection system of invention patent.This system aims to balance the public interests and the interests of the patentee.The temporary protection system of invention patent and the patent protection system together constitute a complete system for the protection of patent rights.However,in the judicial practice of the temporary protection system of invention patent,how to balance the public interest and the interests of the patentee is of paramount importance.Based on the theoretical research on the temporary protection system of invention patents,this paper focuses on the judgments of the case and the disadvantages of the current patent protection system in China,and combines the rich experience of the extraterritorial patent protection system to find a way to effectively balance the interests of the society and the patentee.This paper is divided into five parts.The first part is based on the analysis of the "Siruiman patent dispute" case,and summarizes the arguments by analyzing and summarizing the case.The focus of the dispute in this case are not the technical demonstrations about whether the patented products produced by Kangtailan Company are in the scope of patent protection of the plaintiff Siruiman Company in the judgments made by judges in the first and second instance,but whether the use of the patents by the Kengzi Water Company and the after-sales service provided by Kangtailan Company have violated the plaintiff's invention patent right,after the patent is granted.The second part interprets the theory of temporary protection system of invention patent.From perspectives of the source of the temporary protection system of invention patent,the legal provisions of the temporary patents protection system in China,and the legal effect of temporary protection of patents,the source of the temporary protection patents system in China and the regulations on the temporary protection system for patents are clarified.By clarifying the legal effect of the temporary patents protection from perspectives of patent applicant and the society,this paper will conduct researches on the temporary protection system of patents in other countries and regions.The third part analyzes the patent protection system in the United States,Japan,Germany,and Russia,and introduces the rich legislative experience of the temporary protection system of invention patents,including the US notification system and Japan's priority review system.By the comparison of the temporary protection system of invention patent in the PRC and other countries,this paper tries to explore whether some foreign temporary protection system of invention patents can be adopted by the PRC.In the fourth part,through the analysis of the "Siruiman patent dispute" case,some disadvantages of the temporary protection system of patents in China have been found.Firstly,it confuses the responsibility of implementing patent technology before and after patent licensing.The retrial judge of this case believes that as long as the actor pays the appropriate use fee during the temporary protection period,the act of implementing the patent after the patent is granted is not considered an infringement.In fact,it is the default that the patent infringer bears the tort liability of stopping the infringement and damages by paying the appropriate use fee for the temporary protection period.Secondly,the value judgment of the temporary protection system of invention patent is unbalanced.The purpose of the temporary protection system is the supplement of the rights and interests of the patentee.However,if the appropriate use fee paid in the temporary protection period is used as the liability for patent infringement,the temporary protection system is not able to achieve its goal to supplement the rights of the patentee.Thirdly,there is no constraint on maliciously applying for a patent.According to the retrial judgment,the perpetrator can take the opportunities to legally apply the patent during the temporary protection period,and occupy the market share of the right holder in large quantities by abusing the patented technology in the process of application.So the perpetrator has rights to use the patent after the patent grant at a cost of paying appropriate use fee in the temporary protection period.This paper has proposed some suggestions.In the fifth part,based on the analysis of the legislation of the foreign temporary protection system of invention patent,this paper puts forward some suggestions for perfecting the temporary protection system of patents in China.At first,to deal with the confusion of responsibilities,it is believed that the behaviors of applying the patent in the temporary protection period and the time after the patent grant should be defined differently and the perpetrators should take responsibilities respectively.In the second,to deal with the imbalance of the value judgment of the temporary protection system of invention patent,it is proposed that a relatively balanced relationship should be established between the public interest and the interest of the patentee.Then,to increase restrictions on the abuse of patent in the process of application,there should be some improvements on the patentee's relief procedures,conditionally prioritize substantive examinations,and the appropriate use fees during the temporary protection period.Only by weighing the interests of the public and patent owners can we fundamentally protect free competition,make market in order,and promote scientific and technological progress.