Research On Administrative Litigation Of Patent Right Confirmation

With the progress and development of science and technology,China’s patent industry has ushered in a blowout boom,among which the number of invention patent applications accepted has ranked first in the world for ten consecutive years.However,as a guarantee of the stability of patent ownership,the patent right confirmation system has been criticized by many people,and has become an obstacle to the rapid development of patent.First,the patent litigation process is lengthy.The procedure of patent right confirmation may go through the trial of the administrative department for patent under The State Council,the first instance of administrative litigation,the second instance of administrative litigation and the retrial of administrative litigation.Secondly,patent administrative confirmation and patent civil infringement may lead to related litigation.In civil infringement cases,the defendant will defend against the complaint of the patentee through the patent invalidation request,so it will be associated with the patent right confirmation administrative litigation,resulting in circular litigation;Finally,the role of the State Intellectual Property Office is misplaced.The State Intellectual Property Office acts as the central judge in the examination procedure of invalidation and decides the validity of patent through evidence materials.However,it becomes the defendant in the administrative litigation of patent right confirmation and directly confronts the litigant,which will lead to the loss of neutrality of subsequent administrative actions.In order to solve the problem of patent right confirmation administrative litigation,we should base on the current situation and absorb foreign experience,such as the dual track model of judicial and administrative right confirmation in the United States,the system of natural invalidity defense in Japan and the model of independent patent court in Germany,and actively promote the "dual system of administrative justice" of patent right confirmation.Establish the system of limited judicial review,clarify the boundary of judicial confirmation and administrative confirmation,and take the judicial confirmation path of patent validity as the supplement of administrative confirmation;Establish a liaison mechanism for invalid trial of the same case,break the interface barrier between judicial and administrative right confirmation,realize information sharing between administrative and judicial organs,and improve the efficiency of patent right confirmation;The establishment of trans-regional special courts to unify the jurisdiction of patent right confirmation and patent infringement cases effectively overcome the disadvantages of low efficiency and repeated patent right confirmation.In order to seek a new way out for the development of patent right confirmation system and inject new vitality for the take-off of patent cause.