On Patent Circular Litigation

Circular Legislation is a patent invalidation litigation in which the parties are not satisfied with the review decision made by the Patent Reexamination Board or the decision made by People’s Court,thus both the parties repeatedly litigate to confirm the right of the dispute cases.Due to the influence of the dual system of the separation of patent infringement and right confirmation in the continental law system,TRIPS agreement and international coordination of patent law,China adopts the mode of individual right confirmation,namely the administrative right confirmation system.Under the mode of administrative right confirmation,due to the lack of good follow-up mechanism,when infringement disputes occur,the conflict between executive power and judicial power will inevitably occur,which will lead to the problem of patent circular litigation.Circular litigation is a waste of the country’s precious administrative and judicial resources and is not conducive to technological innovation and development.In order to make up the loopholes in the system,the patent Reexamination Board tried to strengthen the power of examination,and the judicial organs tried to break through the original limited scope of examination in the trial of cases,so as to improve the existing right confirmation system.The above practices are only palliative and destroy the standardization and unity of the current system.In order to solve the problem of patent cycle litigation caused by the low efficiency of patent right confirmation in China,China has also made a lot of efforts in the revision of patent law.Due to the lack of history and system,the practical effect of the reform plan has not reached the expected result.Exploring resolve scheme,the design of China’s patent cycle action problems in patent license approval system as the breakthrough point,after the legal function and value realization ought to be standard for the purpose,give full play to the individual setting mode and parallel setting system of their respective advantages,from the current urgent can implement and double vision of the future long-term sustainable,designed the two solve patent cycle litigation path: First,a series of measures should be taken to build a comprehensive examination of patent invalidation procedure and review according to the functions and powers,reasonably define the scope of judicial examination,establish a judicial second instance legal trial mode,limit the grounds for appeal and add a series of patent modification procedures after authorization.The second is to establish a parallel mode with judicial right confirmation as the core,and improve the supporting system,namely,to build a new two-level intellectual property court,patent reexamination Board judicatory functions and improve the technical investigation system.