How is the limitation of patent infringement litigation stipulated?

In patent infringement, the limitation period, limitation starting point and limitation effect are long-term controversial issues in the legal and judicial circles. The relevant judicial interpretations in China and the Supreme People's Court have reasonable and feasible provisions on patent infringement litigation, but it still needs to be improved with reference to the provisions of "invalid rights". The principle of good faith and fair value embodied in the principle of "delayed notification" and the system of "invalid rights" are of great significance for correctly handling patent infringement disputes, preventing patentees from abusing their rights and safeguarding the public interests, and are worth studying and learning from. Keywords: patent; Infringement; Limitation of action; Invalidation of rights; Delayed notification to China Library ClassificationNo.: df523.2 Document IdentificationNo.: A I. Introduction The prescription of action, also known as extinctive prescription, refers to the legal fact that the right of claim is extinguished if it is not exercised within a certain period of time [1]. The prescription system originated from Roman law has the acquisitive prescription first, and then the extinctive prescription. German jurists explain the legislative reasons for the extinguishment of prescription as follows: "The reason and purpose of extinguishment of prescription of claims is to make people no longer entangled in the old accounts of claims. Some facts may be old things, and one party has been silent for a long time; Nowadays, one party claims rights from the other based on such facts, which is intolerable in civil communication. Because time has overshadowed such a fact, it is difficult, if not impossible, for the other party to cite a favorable exemption reason and succeed. If the extinctive prescription is detrimental to substantive justice, that is, the obligee loses his flawless claim right due to the expiration of extinctive prescription, which is also the price that the parties must pay for the public interest. If the obligee turns a deaf ear to the exercise of the right of claim, there is no reason to eliminate the limitation, so the interest of the obligee in the content of the right of claim is negligible, and the price it pays is hard to say harsh. " [2] extinctive prescription is a system about the right of action. Among the various classifications of procedural litigation in Rome, there are permanent litigation and periodic litigation.

Permanent litigation is mostly applicable to civil litigation, and the right of action is not limited by time; Fixed-term litigation is mostly applicable to judges' litigation and can only be filed within the prescribed time limit, otherwise it will not only lose the right of appeal, but also lose substantive rights. The term of regular litigation is 1 year, which is mainly applicable to the litigation of creditor's rights. Therefore, the periodic litigation that can lead to the extinction of creditor's rights is the embryonic form of extinction prescription. During the reign of the Roman emperor, Dior II issued a decree stipulating that all lawsuits have a certain limitation, and permanent lawsuits must be filed within 30 years, which can be extended to 40 years under special circumstances; However, after the expiration of the period, the obligee only lost the litigation relief, but did not lose the substantive rights. This is the establishment of the extinctive prescription system [3]. The civil legislation of the former Soviet Union and other public-owned countries believes that extinctive prescription mainly produces legal consequences in procedural law, so it is renamed as "statute of limitations". China's civil law theory and works have also accepted this concept. Regarding the scope of application of the statute of limitations, the legal provisions of various countries are not consistent; However, it is generally believed that it only applies to the right of claim, not to the right of domination and formation. (Note: See Article 2262 of the French Civil Code, Article 194 of the German Civil Code, Article 144 of the Soviet Civil Code, Article 663 of the Swiss Civil Code and Article 127 of the Swiss Debt Law. The right of real right claim includes stopping infringement, removing obstruction, eliminating danger, returning property, restoring the original state, etc. The claim for creditor's rights is mainly the claim for damages. There is no dispute about the application of statute of limitations to the claim for creditor's rights; There are two opinions in China's civil law circles: positive and negative. Affirmative theory holds that real right is a dominant right, and its right is not extinguished by prescription. However, when the real right is infringed or threatened, a certain right of claim arises, which is based on certain actions or omissions of a specific person, so the prescription of extinction is applicable. Negation holds that the right of claim for real right has the nature of real right, and it is a relief way aimed at protecting real right, which must coexist with real right itself. Real right is not extinguished by prescription, nor can the right of claim for real right be extinguished by prescription.

The reason for the negative theory is that the claim of real estate rights is extinguished due to prescription, but its right performance is not extinguished. When the occupier fails to obtain his other rights according to the restrictions, the following disadvantages may occur: First, the building permit must be obtained for the houses in urban areas, and it is difficult for the occupier to build or rebuild the houses without the consent of the owner. Second, real estate has to pay taxes, such as land price tax or housing tax, which is levied on everyone according to law, resulting in an unfair situation that everyone pays taxes but does not enjoy the benefits, and the possessor enjoys the benefits but does not pay taxes [4]. Some scholars believe that the right of claim in rem can be applied to the limitation of action, including the right to return property and the right to restore the original state. The limitation of action does not apply to the right to exclude obstacles, eliminate dangers and confirm ownership in the claim of real right [5]. Some scholars believe that the General Principles of the Civil Law of our country does not limit the limitation of action to the right to claim debts, and according to the principle of equal rights, the limitation of action should also be applied to the right to claim property and the right to claim. The elimination of intellectual property rights due to restrictions does not lead to the fundamental elimination of intellectual property rights, but only the elimination of claims against specific infringers.