Research On The Problems And Countermeasures Of My Country's Patent Right Confirmation System

The patent right system is of great significance to stimulate innovation in science and technology,promote commercial development and international trade.Only by establishing a perfect and scientific patent protection system can we achieve remarkable results in the international competition for science and technology,attracting the transfer of developed industries,and enhancing cooperation.As an important part of the patent right system,whether the patent right verification system design is scientific or whether the operation of the system is efficient or not is closely related to the effectiveness of the patent right system in a country.The current patent right verification system is basically formed in the second patent law amendment in 2000.In the practice of system operation,there are many problems such as "long time,high cost and low efficiency",system reform is imminent.Although SIPO started the theoretical research on optimizing the patent right verification system since 2006,but it reviewed the changes in the past more than 10 years,there were many discussions and discussions,and many proposals were put forward.Finally,the reform plan that landed on the ground failed to come out.Without doubt,there are concerns about the natural law amendment concerning the overall situation,etc.But many countries in the world have made attempts to reform the system design,which makes China's patent protection seems deficit.In order to adapt to the world within the scope of the patent system reform trend,provide a theoretical basis for China's patent right system,it is necessary to comb China's experience in patent right in the development of the system and the insufficiency,and compared the reform practice of his country,put forth appropriate authorization of patent system reform scheme.The first chapter reviewed and summarized the history of the patent right verification system in China and the problems that emerge in the process of development.The design of patent right system in China follows the tradition of the continental law system,and sticks to the German experience,and sticks to the theory of the separation of patent right and infringement.The procedure of patent administrative verification is parallel to the original patent cancellation procedure and the patent invalidation procedure,until later it only preserves the patent invalidation procedure,which also reflects the scrutiny and reflection of legislators rooted in China's reality.The patent right of judicial system as the patent invalidation judicial review announcement,always adhere to the purpose of administrative litigation,but it brought to a certain extent,such as "the Patent Reexamination Board before and after the procedure in the role of dislocation" and "administrative litigation mode cannot solve the disputes and other aspects of the problem.In addition,the civil procedure mode and subsequent judicial review of the patent invalidation procedure make the patent confirmation system in China actually show the status of the three level review,the right period is lengthy,and the judicial resources are wasted.The second chapter is the investigation of the reform of the patent right system and the perfect practice in major countries.The practice of patent right,in two legal systems as to whether to take the right division,and infringement of separation of powers model for watershed,showing two main patterns,but summed up the legislative practice in recent years in many countries,can be found around the patent formulation system shows mutual reference trend,the trend is gradually separation theory interrupt.Japan,South Korea and other countries have broken through the separation of powers,giving the court the final right to decide the validity of patent disputes,and the common law countries such as the United States are also increasing the reform of the administrative right procedure.The third chapter is the research on the basis of the analysis of the nature of the patent right system in China.This paper argues that the patent rights as private rights,but need special authorization by public authority is the basic reason to cause the fundamental problem of the current problems of China's ownership system,the invalidation procedure should be considered to confirm an administrative act,and the Patent Reexamination Board is generally accepted as the nature of quasi judicial bodies.On the separation of powers model under the condition of feasible countermeasures to strengthen the Patent Reexamination Board ex officio review function,legislative confirmation of quasi judicial nature,the Patent Reexamination Board and the corresponding reduced level instance;and a breakthrough in the separation of powers model under the condition that the court to decide the validity of patent disputes in the case of the authority is also worth exploring scheme.