(A) the meaning of effective registration
In China, the patent right transfer contract, the patent application right transfer contract and the patent licensing contract are collectively referred to as technology transfer contracts, which belong to the category of technology contracts.
With regard to the registration of technology contracts, the administrative department of science and technology of our government has started it since the implementation of the Technology Contract Law in June 5438+0987 1 65438+10/0. However, this kind of registration is only "to ensure the correct implementation of the technology market policy", and whether it is registered or not does not affect the validity of the contract, so it does not involve the legal effect of registration.
However, the patent law passed by 1984 stipulates that the patent application right and the patent transfer contract must be registered and announced by the patent office before they can take effect. In this way, the provisions of the "Technology Contract Law" obviously conflict with this: first, it is required to take effect after being registered and announced by the Patent Office, and second, it is legally binding after its establishment. However, if the relevant provisions of the Patent Law are regarded as special laws, the legal conflict between the patent application right and the entry into force of the patent transfer contract will be resolved according to the principle of "special law is superior to common law". The judicial interpretation of the Supreme People's Court 1995 also adopts the same solution. With the merger of 1999 "Contract Law" and "Technology Contract Law", according to the provisions of laws and administrative regulations, contracts should go through the formalities of approval and registration, which will obviously completely solve the original legal conflicts. The Patent Law, which was revised for the second time in 2000, stipulates that the right to apply for a patent and the transfer of the patent right shall take effect from the date of registration in the Patent Office, which makes the problem more clear.
However, how to understand that the patent application right and the patent transfer contract will take effect from the date of registration? There seems to be controversy in theory and practice. One view is that a technical contract that lacks legal formal requirements such as approval and registration should be considered invalid ⑦; Another view is that if the formal requirements are required by law, the contract should be deemed invalid rather than invalid. Invalid means that the contract is not legally binding from the beginning; Failure to take effect means that although the contract has been established, it cannot take effect temporarily due to the lack of some statutory or agreed conditions, and the contract will take effect when the conditions are met. There is also a view that once the patent application right and the patent right transfer contract are signed, or once the contract is established, the legal relationship of debt arises between the parties to the contract. As far as the patent right transfer contract is concerned, once the contract is established, the transferor of the patent right has the obligation to "deliver" the patent right, that is, register the contract. The so-called "entry into force after registration" should refer to the "subject matter" of the contract-the transfer of ownership of the application right or patent right after registration, rather than the binding force of the contract on both parties after registration. That is to say, the signing and establishment of the contract produces the legal relationship of creditor's rights, and the registration and entry into force of the contract produces the relationship of property rights change, which is the legal effect of the registration of the patent right transfer contract.
The author agrees with the third opinion. The first opinion is that although the contract was established by mutual agreement, it is invalid without registration and the contract is not legally binding from the beginning. However, a legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. Obviously, this explanation cannot be established. The second view is that a contract is established by mutual agreement, but it is not effective without registration. So, what are the legal consequences of not taking effect? Is the contract binding on both parties? No matter what the answer is, it seems hard to justify it. Only the third interpretation conforms to the original legislative intention of distinguishing "establishment" from "entry into force", that is, "establishment" produces the relationship between debts and "registration" is the transfer of what has happened.
However, Article 44 of the Contract Law and Article 10 of the Patent Law do leave room for further thinking on the legislative language. In fact, as a kind of contract debt, a contract becomes effective immediately, and there is no difference between establishment and effectiveness. When the contract needs to be approved, the establishment of the contract must be approved by the approver in addition to the consent of both parties. Failure to approve actually means that the contract is not established and does not take effect. In the case that a contract needs to be registered, the contract is established when agreed by both parties and has legal effect between the parties. Therefore, strictly speaking, it is "the right to apply for a patent and the patent right are transferred after the registration of the transfer contract", not "the right to apply for a patent and the patent right transfer contract take effect after registration". The amendment to Article 10 of the Patent Law in 2000 has explained this problem.
(2) the legal effect of registration
For the transfer of patent rights, the general national laws require the parties to register in patent institutions. However, for unregistered contracts, there are two different legal effects: one is that there is no transfer of rights, and the other is that it does not affect the transfer of rights but cannot confront a third party. China belongs to the former. However, no matter what kind of regulation, its purpose is to urge the parties to register, otherwise it will bring adverse consequences to the parties, especially the transferee. The reason is that the patent right is different from the general movable property, it is intangible, and its "delivery" can't be seen on the surface, which is similar to the "delivery" of real estate. Therefore, in the case of derailment, there will be the possibility of "one woman and two marriages". In order to protect the interests of the transferee and the bona fide third party, it is necessary to "publicize" the transfer of patent rights similar to the transfer of property rights, so that the public can understand the legal status of patent rights and avoid being deceived. However, if the assignor really transfers its patent to two different people, the registered assignee (or its registered assignee and licensee) can also prevent the unregistered assignee (or its assignee and licensee) from using the patent, even if the assignment contract of the unregistered assignee is earlier than that of the registered assignee.
Our country's law is clear that the patent right transfer contract can produce the effect of right transfer, and naturally produce the effect against the third party after registration. But beyond that, is there any other legal effect? Generally speaking, after the transfer contract is registered, the registered new patentee can sue for infringement in his own name, or transfer or license others to implement 14 in his own name, which is self-evident.
However, does the registered assignee also have the right to file a lawsuit against the infringement that occurred before the patent right transfer? Generally speaking, the transferee can only file a lawsuit against the infringement after registration. However, due to the infringement that has occurred before registration, it will also cause damage to the transferee. Therefore, some countries stipulate that if the assignment contract stipulates that the assignee also has the right to sue for infringement before assignment, and this clause has been registered in the national patent register, the registered assignee can also sue ⒂.
Also, the registered new patentee can transfer or license others to exploit the patent, but for the transferee or licensee who believes in this registration and transaction, if the patentee's rights are untrue or flawed, and the registration is only a superficial illusion created by the patentee, is this transfer or license still valid? This is actually a question of whether registration has "credibility". According to Japanese civil law, the registration of real estate has no credibility, and correspondingly, the registration of patents has no credibility, so although there is a transfer registration, if there is no effective transfer contract, if you trust this registration and trade with it, you will not be protected. The French patent law also stipulates that if the third party wins the lawsuit to recover the patent right, the license contract may be invalid because it was concluded by someone other than the owner; However, if the transferee is in good faith, then the act of trading with the patentee because he believes in the superficial illusion created by the patentee can be regarded as effective. It should be said that the French regulation is more conducive to protecting bona fide transferees or licensees, so it may be more reasonable.
Second, on the exclusive implementation of the license contract
The licensee who has an exclusive license enjoys the exclusive right to exploit the patent, but the patentee himself cannot exploit it. This is very clear. However, it is still controversial whether the exclusive enforcement right is valid within the scope agreed in the contract or within the geographical scope and time limit of the patent right. In any case, many countries stipulate that exclusive licensing contracts should be registered. This is because exclusive execution is not an ordinary debt relationship, it not only has effect between the parties to the contract, but also binds the third party. If the patent right is regarded as "intangible thing", then exclusive implementation is the exclusive use of "thing", which has a strong meaning of "property right". Because the patent right is intangible, if this monopoly is not "publicized", it will not be conducive to protecting the rights of the licensee who implements the monopoly, and will also bring harm to the bona fide third party.
However, different countries have different provisions on the legal effect of exclusive license contract registration. Some of them stipulate that the exclusive license will only take effect after registration. Some clauses: the exclusive license contract will take effect between the two parties without registration, but only after registration will it have the right to oppose the third party. Our country's law only requires the patent licensing contract to be filed with the Patent Office within three months after the contract comes into effect (2 1), but the legal effect of filing is not clear, which is a loophole in legislation. Some scholars argue that China's exclusive license implementation contract should be registered and effective (22). The author thinks that it is more reasonable to adopt the "registration confrontation system", especially when the third party is informed or knows that there is an exclusive license contract, but the contract is not registered. If "registration takes effect", because the license does not take effect, the licensee obviously cannot obtain the right to oppose the third party according to law; According to "registered confrontation", even if it is not registered, the licensee may still confront the third party (23), because the third party may be regarded as malicious at this time, and the malicious third party does not belong to the category of "no confrontation". Of course, it also depends on the clarity of the law.
If the registration confrontation system is adopted, what will be the confrontation effect of the exclusive implementation of the license contract on the third party? See the table below (personal opinion):
Exclusive license registration status
third party
Registration status of the third party
Effectiveness of confrontation
Before exclusive license registration
?
The assignee of the patent right
registered
The exclusive license contract cannot take effect and cannot be used against the transferee.
unregistered
The exclusive license contract can take effect.
?
Patent exclusive licensee
registered
Can't compete with the latter exclusive authorization.
unregistered
Cann't fight each other
?
Patent general license implementer
registered
Can't fight the ordinary licensee behind.
unregistered
Cann't fight each other
After the exclusive license registration
?
The assignee of the patent right
Also register
The licensee may oppose the transferee ★
unregistered
The licensee can fight against the transferee.
?
Patent exclusive licensee
Also register
Should not appear (but a malicious third party can also fight)
unregistered
Can be used against the latter exclusive licensee.
?
Patent general license implementer
Also register
Should not appear (but a malicious third party can also fight)
unregistered
Can be used against the latter kind of ordinary licensee.
★ In fact, it is the application of the principle of "buying and selling does not break the lease" in civil law. But it still needs legal confirmation.
After registration, the exclusive implementer can not only fight against the third party, but also have the right of veto (24) against the patentee's abandonment of the patent right to protect his own rights and interests. Of course, the right to sue for infringement can also be generated (detailed later).
Three, about the general implementation of the license contract
A licensee with a general license has the right to exploit the patent within the scope stipulated in the contract, but he cannot prevent the patentee from concluding another license contract with a third party, nor can he confront other licensees. This is the proper meaning of general implementation license. Therefore, a general license contract is different from an exclusive license contract. The former is only binding on the parties, and it is only a debt relationship. It seems that there is no need to register.
However, because the patent right can be transferred or exclusively licensed to others, and because the patent right is intangible, if the general license registration is not carried out, and then a transferee or exclusive license implementer enters into a contract with the patentee without knowing it and registers it, then the latter transferee or exclusive license implementer will inevitably form a conflict of rights with the former general license implementer. According to the foregoing provisions, it is obvious that the transferee or exclusive license implementer who is registered later can confront the general license implementer who is not registered earlier.
Generally speaking, the implementation license itself has no intention of confronting others, but it will face confrontation from other obligees. This is obviously unfavorable and unfair to the obligee of ordinary license enforcement. In order to avoid this unfavorable situation to the general licensee, some countries stipulate that the general license contract can register the above-mentioned patent assignee or exclusive licensee (25). That is to say, after the registration of the general implementation license contract, the general implementation license that was not antagonistic originally also has certain antagonism. This is actually the application of the principle of "buying and selling without breaking the lease" in the civil law in the patent law. Article 43 of the French Patent Law stipulates that the transfer of the patent right shall not damage the rights acquired before this transfer, that is, the license contract can be maintained (26), which also means this.
It is worth mentioning that even if registered, the general implementation license cannot compete with other unregistered general implementation licenses (27), which is determined by the characteristics of the general implementation license. Therefore, the antagonism between general license and exclusive license is completely different. It is flawed to stipulate that "the patent license contract is unregistered and has no right to fight against the third party who obtains the rights in the patent", which will cause confusion of the confrontation effect of two different license contracts. In my opinion, it is appropriate to adopt the clear stipulation that "after registration, it can fight against the later patent assignee or exclusive licensor" for general exploitation license.
In addition, like the exclusive license after registration, the general license after registration can not only confront the specific third party, but also have the veto power over the behavior of the patentee to give up the patent right, and can also produce the right to participate in the infringement (detailed later).
Four. Litigation rights of registration and licensee
According to general jurisprudence, the lawsuit of infringement should be filed by the obligee. Therefore, the patent infringement lawsuit should also be filed by the patentee. But the so-called infringement of patent right means infringement of patent exploitation right; When the licensee obtains the consent of the patentee to exploit its patent, the infringement of the patent right by a third party will inevitably damage the rights and interests of the licensee.
Especially in the case of exclusive implementation, infringement of patent right is not so much an infringement of the rights of patentee as an infringement of the rights of exclusive implementer. Therefore, many countries give exclusive licensees the right to sue for patent infringement, but the specific conditions are different. In some countries, the right to sue the licensee is the same as that of the patentee, without any restrictions, but as its inherent right (28); However, since registration is an effective element of exclusive license, registration is also a necessary prerequisite for exclusive license. For those countries where registration is only an element of confrontation, is registration also a necessary prerequisite for the exclusive implementation of the licensee's prosecution? The answer is generally yes, that is, only the registered licensee can sue, and only the registered infringement facts can be prosecuted (29). Some countries even expressly stipulate that a person becomes an exclusive licensee of a patent, and the subsequent infringement of the patent will not be compensated by the court or the director of the patent office before the contract behavior is registered (30). But if the infringer is not registered but knows the existence of the license contract, can the licensee also sue? It is controversial in theory. Generally speaking, since the infringer knows the scope of damage that his infringement may cause, the unregistered licensee should also be given the right to participate in the litigation (3 1).
Under the general permission, it seems that no third party will infringe the rights of the licensee. Because theoretically speaking, one more third person (infringer) who exploits the patent without permission will not cause any damage to the ordinary licensee who exploits the license. But in fact, one more executor means one more competitor, which will inevitably affect the interests of legal licensees, and this influence is brought about by illegal acts. Therefore, it is necessary to give the licensee of the general license certain litigation rights against this illegal act in order to safeguard its rights and interests.
According to the general national laws, the licensee registered with the general implementation license can participate in the main infringement lawsuit filed by the patentee to obtain personal injury compensation. On the contrary, if you don't register, you can't participate in the lawsuit (32). The Model Law for the Protection of Inventions in Developing Countries even gives the licensee the right to sue directly (33). In some countries, the law does not stipulate the litigation right of the licensee who generally implements the license, but it is recognized in theory, but it also requires registration (34).
Our country's law does not clearly stipulate that the licensee who implements the patent can file or participate in litigation against the third party's infringement of the patent right. However, some scholars believe that China's Patent Law (former Article 60, now Article 57) stipulates that the patentee or interested party may bring a lawsuit to the people's court for patent infringement, among which "interested party" includes the assignee who exclusively implements the license contract, the assignee who exclusively implements the license contract and the assignee who has a special agreement on the general license contract (35). This is of course the solution to the problem, but after all, it is only a theoretical explanation and has no legal effect. On June 5th, 20001179th meeting, the Judicial Committee of the Supreme People's Court adopted "Several Provisions of the Supreme People's Court on Applicable Laws for Stopping Patent Infringement before Litigation" (Fa Shi [20065438+0] No.20), in which Article 1 stipulates: "According to Article 61 of the Patent Law, the patent right The interested parties who apply include the licensee of the patent licensing contract and the legal heir of the patent property right. " Although this is the interpretation of Article 6 1 of the Patent Law, since the interested parties who have the right to apply before litigation include the licensee of the patent licensing contract, the licensee naturally has the right to file a lawsuit. From this judicial interpretation, it can be inferred at least that the licensee who exclusively implements the license contract can bring a lawsuit to the people's court alone, and the licensee who exclusively implements the license can bring a lawsuit without the patentee bringing a lawsuit (36). As for the licensee who generally implements the license contract, the judicial interpretation does not seem to include it among the "interested parties".
Because our country's laws only require the licensing contract to be filed (in fact, it means registration), but do not stipulate the legal effect of filing, it seems that it is unnecessary for the licensee to file an infringement lawsuit on the premise of contract registration. Article 4 of the Supreme People's Court's Provisions on Applicable Laws for Stopping Patent Infringement before Litigation stipulates that interested parties shall provide licensing contracts and filing documents, but filing is not a prerequisite. As long as there is evidence that they enjoy the patent right, they can apply. This is obviously different from the premise that registration is the licensee's participation in infringement litigation in many countries, and it needs to be improved in future legislation.
(1) See Article 34 of People's Republic of China (PRC) Technology Contract Law (repealed); Article 342nd of People's Republic of China (PRC) Contract Law.
(2) Refer to the reporter's question from the person in charge of the State Science and Technology Commission on several issues concerning the implementation of the technology contract law (1987101October 3 1). Compilation of Technical Contract Law and Related Documents, edited by Policy and Regulation Department of State Science and Technology Commission, Beijing 1st Edition, Science and Technology Literature Publishing House, 1989, p. 28.
③ See Articles 10 and 16 of People's Republic of China (PRC) Technology Contract Law (repealed); 1984 Paragraph 4 of Article 10 of the Patent Law of People's Republic of China (PRC).
(4) See Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Scientific and Technological Disputes (1issued on April 2, 995? 1995? No.6) "Four. Confirmation of the effectiveness of the technical contract "on page 24. The examination and confirmation of the effectiveness of a technology contract shall be conducted in accordance with Article 21 of the Technology Contract Law and Article 25 of the Regulations for the Implementation of the Technology Contract Law, and the technology contract shall not be deemed invalid for the following reasons: …… (4) The technology contract has not been registered or filed by the relevant department, except that the contract for transferring the patent right and patent application right must be registered and announced by the Patent Office;
⑤ See Article 44 of People's Republic of China (PRC) Contract Law.
⑥ Refer to the third paragraph of Article 10 of the Patent Law of People's Republic of China (PRC) revised for the second time at the 17th meeting of the Standing Committee of the Ninth NPC on August 25th, 2000.
⑦ Quoted from jaw forest: Legal issues related to technology contracts under contract law,
⑧ See Qin: Legal issues of technology contracts under the contract law,
9. See Han: Legal Effect of Contract Registration Involving Patents, Patent Law Research, 2000,No. 1 Edition, Intellectual Property Press, February 2000,No.120-1Page.
Attending see Article 8 of the People's Republic of China (PRC) Contract Law.
⑾ See Article 10 of People's Republic of China (PRC) Technology Contract Law: "... if it needs to be approved by the relevant authorities according to state regulations, it shall be established from the time of approval."
⑿ See Article 68 of the Indian Patent Law (1970 September19), Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 4, Beijing 1st Edition, Knowledge Publishing House, 1986+02, p. 132. See also paragraph 1 (1) of Article 98 of the Japanese Patent Law, Introduction to Foreign Patent Law 2 compiled by the Patent Office of China Institute of Science and Technology Information, Beijing 1st Edition, Knowledge Publishing House, 1986+0938, page 2 18.
[13] See Introduction to Foreign Patent Law 2 compiled by the Patent Office of China Institute of Science and Technology Information, Beijing First Edition, Knowledge Publishing House, 1986+02, Part 35, United States Code, page 35? Article 26 1 of this patent; British Patent Law, Part I, pp. 76-77 (1977)? Article 33 of the new domestic law. See also Shen Daming: French Patent Law of Intellectual Property Law, Foreign Economic Relations and Trade Press,No. 1 Edition, May 1998,No. 173.
14. See Model Law for the Protection of Inventions in Developing Countries (Geneva, May 1965), Part I? Patent, compiled by the Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 3, Beijing 1st Edition, Knowledge Publishing House,1986 65438+February, page 5 1-52.
⒂ See Wang, French Invention Patent Law, China Foreign Translation Publishing Company, first edition,1February 986, p. 1 17.
[14] See (Japan) Wen Gu Zhang Nan: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press,No. 1 Edition, 1984+082.
See Wang and Translation, French Invention Patent Law, China Foreign Translation Publishing Company, 1st edition, February 1986, p. 167.
⒅ See (Japan) Zhang Nan, Wen Gu: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press, 1 edition, 1984+087. He Han: The legal effect of contract registration involving patents, Patent Law Research, 2000, Intellectual Property Press, February 2000, p. 1 22. Japan's exclusive license is valid only within the scope stipulated in the contract.
9. See Article 98 1 (2) of the Japanese Patent Law, Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 2, Beijing 1st Edition, Knowledge Publishing House, 1986+02, page 2 18.
⒇ See Introduction II to Foreign Patent Law compiled by the Patent Office of China Institute of Science and Technology Information, Beijing 1st Edition, Knowledge Publishing House,1986,65438+February, page 35, part 35 of the United States Code? Article 26 1 of this patent; British Patent Law, Part I, pp. 76-77 (1977)? Article 33 of the new domestic law (1) (a). See also article 46 of the French Patent Law for Invention (1978), edited by Wang, China Foreign Translation Publishing Company, 1st edition (1986), p. 153. In addition, the first part of the Model Law for the Protection of Inventions in Developing Countries (Joint International Bureau for the Protection of Intellectual Property Rights, Geneva, May 1965)? Patents, article 28? Paragraph (3) of the license contract also makes the same provision, edited by the Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 3, Beijing First Edition Knowledge Publishing House198665438+February, pp. 54-55.
[2 1] See Article 15, Paragraph 2, Contract Filing (formerly Article 13) and Article 88 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) published on June 5, 2006.
[22] See Han: The Legal Effect of Contract Registration Involving Patents, Research on Patent Law, 2000, Beijing: Intellectual Property Press, the first 1 edition, 127, February 2000.
[23] See Wang, French Invention Patent Law, China Foreign Translation Publishing Company, February edition 1986, 1, 154. See also Introduction to Foreign Patent Law II compiled by the Patent Office of China Institute of Science and Technology Information, Beijing First Edition, Knowledge Publishing House, 1986, 12, 35 U.S.C. Page 35? Article 26 1 of this patent; British Patent Law, Part I, pp. 76-77 (1977)? Article 33 of the new domestic law (1) (c)
[24] See paragraph 1 of Article 97 of the Japanese Patent Law, compiled by the Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 2, Beijing 1st Edition, Knowledge Publishing House, 1986+02, page 2 17-2 18. In addition, the first part of the Model Law for the Protection of Inventions in Developing Countries (Joint International Bureau for the Protection of Intellectual Property Rights, Geneva, May 1965)? Patent, Article 46 "Waiver of Patent" No.4 also makes the same provision, edited by the Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law No.3, Beijing First Edition, Knowledge Publishing House 1986 12, p.74.
[25] See Wen Gu Zhang Nan: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press, p. 1 edition, 1984+089.
[26] See Wang, French Invention Patent Law, China Foreign Translation Publishing Company, February edition 1986, pp. 1, 166.
[27] See (Japan) Wen Gu Zhang Nan: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press, the first 1 edition, 1984+092- 193.
[28] See Japanese Patent Law (Patent Law) Article 100: An Introduction to Foreign Patent Law 2, edited by the Patent Office of China Institute of Science and Technology Information, Beijing First Edition, Knowledge Publishing House, 1986+02, p. 2 19. See also (Japan) Akio Higuchi: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press, the first 1 edition, 1984+05438+090- 1.
[29] See Wang, ed.: Article 1978 (2) of French Invention Patent Law, China Foreign Translation Publishing CompanyNo. 1986,No. 1,No.17-/.
[30] See Part I of the British Patent Law (1977)? New domestic law? Article 68. Prosecution of infringement of exclusive licensee, Introduction to Foreign Patent Law, Volume II, edited by Patent Office of China Institute of Science and Technology Information, Beijing First Edition, Knowledge Publishing House, 1986 1 14.
[3 1] See French Invention Patent Law edited by Wang He, China Foreign Translation Publishing Company, 1986, p. 1 edition, p. 172- 173.
[32] See Wang, French Invention Patent Law, China Foreign Translation Publishing Company, February edition 1986, 1, p. 153- 154. ?
[33] See Section 52 of the Model Law for the Protection of Inventions in Developing Countries, "Litigation of Licensee" (Joint International Bureau for the Protection of Intellectual Property 65438+ Geneva, May 0965). Patent Office of China Institute of Science and Technology Information: Introduction to Foreign Patent Law 3, Beijing 1st Edition, Knowledge Publishing House 1986 12, p. 80.
[34] See (Japan) Wen Gu Zhang Nan: Fifty Lectures on Patent Law, translated by Wei Qixue, Law Press, 1st edition, 1984 19 192.
[35] See Cheng Yongshun: Patent Infringement Litigation, in Intellectual Property Protection Practice (edited by Zheng), Part III, Yanshi Publishing House, 1st edition, 1995+0 1, p. 309.
[36] See Article 1, paragraph 2 of the Supreme People's Court's Provisions on Applicable Laws for Stopping Patent Infringement before Litigation (Fa Shi [2001] No.20).