Research On The Relief Path Of The Temporary Patent Protection System

The temporary p rotection period refers to the special period after the invention patent is published to before the patent is granted.For the purpose of protecting the rights and interests of the applicant,the remedy granted by the law to the applicant during the temporary protection period is called the right of temporary protection.Article of my country’s Patent Law provides for this system.However,this regulation has the problems of oversimplification in legislation and delay in updating the law,which has caused this regulation to lack a sense of existence in my country’s judicial practice for a long time.In the academic discussion,the research on the temporary protection system lacks long-term attention.Many studies have focused on the discussion of the Supreme People’s Court’s No.Guiding Cases,and there is a lack of in-depth research on the basic theory of the temporary protection system.However,there are different opinions on the nature of the right of temporary protection,and the lack of a unified theoretical model makes it difficult to form a unified theory to optimize the relief path of the temporary protection system.Various theories about the nature of the right of request for temporary protection mainly include the theory of the right of expectation,the theory of the conditional contract,and the theory of the right of unjust enrichment.The expectation right theory believes that the legal status enjoyed by the applicant for the invention for which a patent is being applied for is in line with the requirements for the right of expectation.The conditional contract theory believes that the relationship between the patent applicant and the implementer can be regarded as "there is a single conditional contract led by administrative power." When the patent applicant files a patent application,it is deemed to have issued an offer.The implementer’s implementation behavior is regarded as a promise,and the contract is established when the patent is granted.The claim of illegitimate gains claims that:the benefit protected during the temporary protection period is the result of the inventor’s intellectual labor,and the third party has no reason to use the invention and obtain the benefit,that is,it infringes the patent applicant during the temporary protection period.There is no legal reason for the benefits enjoyed,so it constitutes the right-infringement type of unjust enrichment.This article believes that these views are not sufficient to explain the essential characteristics of the right of provisional protection.Through the dual rights relief structure of"basic right-claim right",from the perspective of the distinction between rights and rights in the tort liability law,this thesis proposes that the basic right of the temporary protection system is a property interest of the nature of intellectual property rights.Based on the concept of pure economic loss in German law,it compares the object difference between temporary protection and patent protection.Clarifying the nature of the right to request temporary protection should belong to the tort liability standard.And from the perspective of distinguishing rights and rights,the difference between the temporary protection system and the patent infringement system is explained.This article finally puts forward three suggestions to improve the relief path of the temporary protection system:.Improve the accelerated examination system and crack down on abnormal patent applications..Improve the legislation,and improve the legislation for the provisional protection of the right of claim based on the system of tort law.Take notice as a prerequisite to limit the abuse of fair liability.Exploring to grant certain exclusive rights to the temporary protection system within the framework of the Anti-Unfair Competition Law.Regarding whether the applicant should be granted a certain degree of exclusive protection during the temporary protection period,there are two views,positive and negative.This article holds the affirmative point of view and believes that my country’s patent system is not yet sound,and the applicant’s losses are difficult to compensate.Under the premise of effectively restricting the applicant’s malicious litigation,the applicant can be given a certain degree of exclusive protection.