Research On The Preferred Method Of Disclosure Rules Of Patent Application In China

Article 17 of the implementing regulations of the patent law provides the disclosure requirements for the preferred mode of patent application in China.It is a higher requirement for patent applicants,aiming to improve the disclosure threshold,the quality of patent documents and patents.However,most scholars believe that it has many problems,such as vague definitions,unclear legal effect,confusion between the preferred method and trade secret and unsatisfactory legal status etc.Only a few scholars believe that the current preferred disclosure requirements in China are reasonable and do not need to be modified with reference to the best disclosure requirements of other countries.Therefore,it is instructive to do research on the current disclosure requirements of preferred methods in China in order to improve the disclosure quality of patent documents in China.The disclosure requirement for the best mode which is one of the characteristics of American patent law with a long history and legislative perfection was first implemented in the United States.Therefore,this paper studied through the specific case of the disclosure requirements for the best way including the constituent elements and the legal consequences of violating the best way disclosure requirements,this paper also compares it with the disclosure requirements of the preferred way in China,clarifies the relationship between the preferred way and the best way,and the differences between the disclosure requirements of the preferred way and the disclosure requirements of the best way so as to provide a lot of enlightenment for constructing and perfecting the disclosure requirements of preferred way in China.This paper holds that the disclosure requirements of the preferred way in China are different from it in the United States,the current disclosure requirements of preferred methods in China are reasonable in the sense,but we still should set a "subjective objective" judgment standard,mark the preferred methods clearly,and give corresponding evidence and reasons in order to avoid the disclosure requirements of preferred methods in China becoming a mere formality.In addition,some relevant measures such as information provision requirements,supplementary review procedures,defense of improper behavior and moral means can be added to the current disclosure requirements of preferred methods in China so as to effectively supervise the implementation of it.The traditional view is that patents and trade secrets cannot coexist because the United States and other countries have stipulated the requirements of the best way of disclosure,but most scholars believe that patents and trade secrets are not incompatible,but complementary.However,there are massive research blank on the relationship between preferred mode disclosure requirements and trade secrets in present China.Therefore,this paper first discusses the relationship between patents and trade Secrets under the best way disclosure requirements in the United States.Then,on this basis,it clarifies the relationship between preferred mode in China and trade secrets.This paper holds that there is some overlap between the preferred way and trade secrets in China,so both of them are coordinated.In addition,based on the complementarity of intellectual property rights and the inherent boundary of each right,there are no external restrictions on the protection of patents and trade secrets in China.Therefore,enterprises can construct an impeccable exclusive right to protect invention and innovation through the dual protection of patents and trade secrets.