Research On Arbitrability Of Patent Validity

As the international economy and trade referring to high technology becomes more and more frequent,arbitration presents huge advantage in protecting patent trade area.There is not any dispute in the cases of patent infringement and patent default reaching an arbitration agreement.However,in the cases of patent infringement and patent default,the patent validity is always regarded as an essential plea,because of which there exists large differences on the question whether the patent can be arbitrate or not in academic field and theoretical field.Although several developed countries such as America and Switzerland has first broken the theoretical forbidden zone,China still holds negative attitude in this question.The paper begins with three aspects: the definition of arbitration-able quality;the differences between arbitration-able quality and litigation-able quality,settlement-able quality,property right and interests quality and public policy;the current legislating situation on arbitration of patent validity,comparing patent validity arbitration and current affirming system of patent validity,offering basic theoretical support to break the fence of patent validity arbitration.Then,the paper develops from patent validity arbitration theories.The Intellectual Property Agreement,on behalf of private right,emphasizes that intellectual property is a private right in law,according to which patent validity has probability of arbitration.However,because the definition of public policy is extremely unclear and uncertain,it is not enough for public policy to negate arbitration-able quality of intellectual property dispute.Moreover,arbitration validity is relative and it can not damage public policy.However,it should be vigilant that patent validity also fits the inherent obstacles of arbitration,such as the contradiction between legality of patent right and settlement-able quality of arbitration,and the differences between the willing autonomy of patent validity arbitration and public policy.Taking example by America's legislation of patent validity arbitration and supporting measures to guarantee patent validity arbitration,and Switzerland's legislation,judicature and administration system of patent validity arbitration,it can be seen that the contradiction between legality of patent right and settlement-able quality of arbitration can be handled because the res judicata of arbitrating decision only exists between both parties,while the rights and interests of the third party and the register or litigation decision of administrative organ can never be influenced.When defining the boundary of public policy should use the rule of confined interpretation and apply the international public policy.Finally,after the patent validity dispute contained in arbitration system,there should be a link-up among the section of submission to arbitration of patent validity,the problem whether patent arbitration agreement can be put advance of administrative organ and simultaneously settled,the influence for arbitration decision to latter administrative litigation,and the problem of execution.