A Study On The Effectiveness Of Patent Evaluation Report In Patent Infringement Litigation

Under the background of strengthening the protection of intellectual property rights,there are more and more disputes about patent infringement of utility model and design.Utility model patent application and design patent application can be authorized only through preliminary examination,and their legal stability is poor.As a supplement,the patent evaluation report evaluates whether these two types of patents have the conditions for authorization.Its conclusion includes three cases: the patent does not meet all the conditions,part of the conditions and all of the conditions for authorization.Among them,the first two cases can be called patent evaluation reports with negative content.In 2008,the patent law defined the patent evaluation report as "evidence for hearing and handling patent infringement disputes",but did not specify its specific application rules.At the same time,when the court requests to submit the evaluation report but fails to submit it,the parties will bear the adverse consequences,which can be seen that the evaluation report directly affects the interests of the parties.However,through the analysis of judicial cases,it is found that there are difficulties in the application of patent evaluation report in patent infringement litigation.In terms of effectiveness,if the patent evaluation report with negative content reveals that the patent involved is unstable,but the patent still has effectiveness without invalidation procedure,the two conclusions conflict.It is found that patents with positive evaluation are ultimately declared invalid,and patents with negative evaluation are still valid after the invalidation process,which indicates the inaccuracy of the conclusion of the evaluation report.However,in the procedure,the patent evaluation report does not design the relief way of the counterpart in the system.The contradictory situation causes the obligee and the public to question the function of the evaluation report,which hinders the patent protection.Using the experience of overseas countries or regions for reference,the patent evaluation report system in China is improved.South Korea filed a large number of technical evaluation reports,which resulted in insufficient review resources and did not improve the effect of safeguarding rights;France took patent evaluation report as a necessary condition for filing a lawsuit;Japan and Taiwan stipulated that the patent was invalid after filing a lawsuit based on a patent with a negative evaluation report,and the obligee needed to pay certain compensation;at the same time,South Korea,Germany and Austria provided patent evaluation report All of them have designed relief procedures.Therefore,we should improve the application of patent evaluation report in patent infringement litigation,make clear that the evidence type of patent evaluation report is appraisal opinion,improve the power of proof of patent evaluation report,make clear the situation in the application process,set up relevant relief procedures,and improve the patent evaluation report system from the procedure,and further clarify the applicable regulations in judicial practice To make clear the adverse consequences that should be borne.