1, same point
(1) The review and invalidation procedures are also special reconsideration procedures.
Why are reexamination and invalidation also special reconsideration procedures? The review is easy to understand, that is, the re-examination of the rejection decision, and the review is a broad reconsideration. Then why is the invalid procedure also called generalized reconsideration? Invalid procedure is the procedure of both parties, how can it be called retrial? The answer is yes. Re-examination is a re-examination of the rejection of specific administrative acts, and invalidity is a re-examination of authorized acts to see whether the granted patent right is correct or incorrect. If it is incorrect, it is invalid or partially invalid. However, this kind of review is not initiated by the Intellectual Property Office itself, but by an interested third party, often the accused infringer in the infringement procedure. It is precisely because there is a significant difference between the patent invalidation procedure and the ordinary reconsideration or reexamination procedure that one party appears. So the patent law calls it an invalid procedure. In the patent systems of various countries, there is a system of reviewing the granted patent right after authorization, but the name is different. Some countries call it revocation procedure, while others call it invalid procedure. But no matter what it is called, its essence is a re-examination of the authorized behavior, that is, the object of the review is the authorized behavior of the patent office, not the infringement dispute between the parties. Therefore, even if there is a third party, it should not be considered as a civil procedure, but an administrative procedure. In the Japanese patent law curriculum, it is also reasonable to call the invalid procedure "patent invalidation examination" and the examination "patent rejection examination" (note). Therefore, although there is a third party in the invalid procedure, it should still be considered as a re-examination of the authorized act, that is, it is still a broad reconsideration.
(2) The reconsideration decision, reexamination decision and invalid decision shall be subject to judicial review.
That is, the three decisions are all administrative decisions, not final administrative decisions. In a modern country ruled by law, the decisions made by administrative organs need to be reviewed by subsequent judicial organs to protect the legitimate rights and interests of citizens, legal persons or other subjects from the wrong actions of administrative organs. Because usually the value orientation of administrative activities is efficiency first, and the value orientation of judicial organs is more inclined to fairness. Therefore, the administrative organs do it quickly, and sometimes they will fight a long lawsuit when they get to the court. If a party refuses to accept the reconsideration decision, he may bring a lawsuit to Beijing No.1 Intermediate People's Court (now Beijing Intellectual Property Court) within 15 days after receiving the reconsideration decision. If you refuse to accept the judgment of Beijing No.1 Intermediate People's Court (Beijing Intellectual Property Court), you can also appeal to Beijing Higher People's Court. If a party refuses to accept the reexamination decision maintained by the Reexamination Committee or the decision to declare the patent right valid, he may bring a lawsuit to the Beijing No.1 Intermediate People's Court (Beijing Intellectual Property Court) within three months after receiving the decision, or appeal to the Beijing Higher People's Court if he refuses to accept the judgment of the court of first instance. Therefore, when accepting the division of the court,
At this point, the three programs are the same.
(3) The State Reconsideration Law should also be applied to the review and invalidation procedures under special circumstances.
This is based on the fact that the invalid review procedure is a special reconsideration system relative to the national reconsideration system. The system of patent reexamination and invalidation is stipulated by the patent law and its detailed rules for implementation, so the State Administrative Reconsideration Law cannot be directly applied. Because of this, the provisions of the patent law on examination and invalidation system should belong to the relationship between "special law" and "common law" compared with the provisions of the national administrative reconsideration law. According to the rules of the applicable law, when the "special law" has clear provisions, the "special law" should be applied first. When "special law" is not clearly defined, "common law" should still be applied. Where the Patent Law and the detailed rules for the implementation of the Patent Law have no provisions on the procedure of reexamination or invalidation, the State Administrative Reconsideration Law shall still apply. The review or invalidation procedure is not a self-contained closed procedure. If the patent law does not stipulate that the request for reexamination is inadmissible, what kind of relief procedure is provided to the applicant? Or what kind of relief procedure is provided to the invalid requester when the invalid request is not accepted. However, Article 19 of the State Administrative Reconsideration Law stipulates that "if laws and regulations stipulate that an application for administrative reconsideration should be made to the administrative reconsideration organ first, and an administrative lawsuit should be brought to the people's court if the administrative reconsideration organ refuses to accept the decision, or if the administrative reconsideration organ fails to reply after accepting it, a citizen, legal person or other organization may bring an administrative lawsuit to the people's court within 15 days from the date of receiving the rejection decision or the expiration of the administrative reconsideration". This article stipulates that administrative proceedings can be brought in two cases, one is the case of "reconsideration before prosecution". That is, it is not allowed to bring a lawsuit directly to the court, and it must be reconsidered first. Re-examination and invalidation belong to this kind of pre-procedure, and can not be directly brought to court without the examination of the Patent Reexamination Board. In this case, if the reconsideration organ makes a decision of inadmissibility, such as the decision of inadmissibility or invalid request made by the reexamination committee, the party concerned may bring an administrative lawsuit to the court within fifteen days. The reason why the State Administrative Reconsideration Law stipulates this is to prevent the reconsideration organ from depriving the parties of their substantive rights on procedural grounds. Therefore, the Administrative Reconsideration Law stipulates that judicial relief can be obtained in this case. In fact, it is not uncommon for review committees to appear in court for many years. Therefore, under special circumstances, the national administrative reconsideration law should also be applied to the review and invalidation procedures.
(4) The reconsideration procedure is also a part of the patent examination system.
The procedure of reexamination and invalidation is a part of the patent examination procedure, which is clearly stipulated in the patent law, the detailed rules for the implementation of the patent law and the examination guide, and there will be no objection. Although the reconsideration system has not entered the process, is the administrative reconsideration procedure a part of the patent examination system? There are no provisions in the patent law, detailed rules and examination guidelines. But the absence of provisions does not mean that the reconsideration system is not part of the patent examination system. The patent system is not a closed and self-sufficient system, and it is impossible for the patent law and the detailed rules for the implementation of the patent law to exhaust all systems involving patents. It should be considered that the patent reconsideration system of the Intellectual Property Office is still an organic part of the patent examination system, although it is placed outside the patent examination procedure. The system in China is similar to that in Japan. There are three clauses in Japanese patent law involving reconsideration system, which obviously involve patent examination procedures. Therefore, in China and Japan, the system of administrative reconsideration (called administrative dissatisfaction in Japan) is equivalent to preliminary review and "small review" of the process, which is more obvious in Japan. That is to say, according to the Japanese patent law, the first-instance rejection does not enter the review, but the reconsideration. Therefore, the reconsideration procedure should be regarded as an important relief measure in the patent examination system, just like the reexamination and invalidation procedure.
Program. In addition, the provisions of the patent law, the detailed rules for the implementation of the patent law and the review guide should also be applied to the trial of reconsideration cases. The only difference between the applicable law and review and invalidation is that the applicable terms are often different. Since reexamination and invalidation mostly involve substantive issues of patent applications, the applicable clauses are often those involving patentability. However, reconsideration mostly deals with procedural issues, and the applicable law is mostly procedural law. Therefore, the patent reconsideration system is also an important part of the patent examination system.
2. Difference
(1) Its legal basis is different.
The system of reexamination and invalidation is the procedure stipulated in the Patent Law, the Detailed Rules for the Implementation of the Patent Law and the Examination Guide. That is, the system of patent reexamination and invalidation shall be established according to the patent law. In other words, the State Administrative Reconsideration Law is not directly applicable to patent reexamination and invalidation procedures. Although review and invalidation are also broad reconsideration systems, they are related to "special law" and "common law" relative to the national administrative reconsideration law. In the order of applying the law, the priority application rules of the patent law, the detailed rules for the implementation of the patent law and the examination guide should be adopted. The patent reconsideration system is not established according to the Patent Law and its detailed rules for implementation, but according to the State Administrative Reconsideration Law. Therefore, in the application of procedural law, the national administrative reconsideration law is directly applied. In other words, the legal basis for their establishment is different, and the applicable law and order in procedure are also different.
(2) The technical content of hearing cases is different.
This is obvious, because the re-examination is a re-examination of the rejection decision. Apart from the rejection in the preliminary examination, it is bound to involve very professional technical issues. The re-examination committee with technical background has to deal with the re-examination cases, and so do the invalid cases. However, reconsideration cases are mostly procedural issues, even if they involve substantive issues, they are very obvious substantive issues and do not need specialized technical personnel to hear them.
(3) The names of the subjects are different
According to the provisions of the Patent Law, the Patent Reexamination Board is established by the Intellectual Property Office, but the legal status of the patent examination business is higher than that of the Intellectual Property Office. That is, the rejection decision made by the Intellectual Property Office should be reviewed by the Patent Reexamination Board (review procedure), and the authorization decision made by the Intellectual Property Office should also be reviewed by the Patent Reexamination Board (invalid procedure). Since the implementation of 1985 Patent Law, the Patent Reexamination Board has been stipulated to conduct activities in the name of an organ as a legal person on two issues, one is to make a decision on reexamination and invalidation, and the other is to appear in court to respond to the lawsuit, in the name of the Patent Reexamination Board itself. Besides, the Patent Reexamination Board is now an organ legal person in the civil subject. So it made a decision in its own name, of course. The reconsideration procedure is different. The Legal Affairs Office is an office of the Intellectual Property Office. It is impossible to make a reconsideration decision in its own name, only in the name of China National Intellectual Property Administration. In the process of responding to the lawsuit, it was also in the name of China National Intellectual Property Administration.
(4) Different forms of responsibility.
The content of the review or invalid decision is the rejection or authorization of the Intellectual Property Office, both of which are based on technical judgment. Therefore, if the rejection decision is revoked or the patent right is declared invalid, the Intellectual Property Office will not bear the responsibility of "administrative violation" of the rejection error or authorization error, let alone the responsibility of administrative compensation, which is the same practice in patent systems all over the world.