Interpretation of the Provisions on Judicial Protection of Patent Rights

Interpretation of Provisions on Judicial Protection of Patent Right Interpretation of Provisions on Judicial Protection of Patent Right Interpretation of Provisions on Judicial Protection of Patent Right Interpretation of China's Patent Law is a law mainly related to patent application and examination. Among the eight chapters of the patent law, only one chapter, Chapter VII, involves the protection of patent rights, including judicial protection and administrative protection. Except for the general provisions in Chapter I and the supplementary provisions in Chapter VIII, the other chapters of the Patent Law stipulate the conditions of authorization, patent application, examination and approval of patent application, duration, termination and invalidation of patent right and compulsory license respectively. Of the eight chapters in the detailed rules for the implementation of the patent law, only one chapter, namely Chapter VII, involves the protection of patent rights. The other seven chapters are general principles, patent applications, examination and approval of patent applications, reexamination and invalidation, compulsory licensing, rewards and remuneration for service inventions, patent registration and patent announcement. The patent protection in Chapter VII of the Detailed Rules for the Implementation of the Patent Law only involves the administrative protection of the patent right, not the judicial protection of the patent right. To sum up, at the legal level, the provisions on judicial protection of patent rights are only some principled provisions in Chapter VII of the Patent Law. The court's handling of patent infringement cases is mainly based on three judicial interpretations of the Supreme Court, namely, Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes (hereinafter referred to as the Provisions on Patent Disputes), Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Patent Infringement Disputes (hereinafter referred to as the Interpretation of Infringement) and Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Patent Infringement Disputes (II) (hereinafter referred to as the Interpretation of Infringement). According to the Supreme People's Court's regulations on case guidance, the guiding cases issued by the Supreme Court also have the same legal effect as the judicial interpretation. Some people call the guiding cases the judicial interpretation of retail. In addition, local courts have also issued some documents related to patent infringement, such as Beijing High Court's Guidelines for Determining Patent Infringement (20 17), Shanghai High Court's Guidelines for Trial of Patent Infringement Disputes (201) and Guangdong High Court's Guidelines for Trial of Standard Necessary Patent Disputes (20/kloc-0) In the administrative field, on 20 16, China National Intellectual Property Administration issued the "Guidelines for Determining Patent Infringement (Trial)". Since these documents have no legal effect, I don't need to say anything in this article This paper combs the outline of judicial protection of patent right through the patent law, the above three judicial interpretations of the Supreme Court and some guiding cases related to patents. The effect of patent right is different from that of copyright, which is the right of automatic production after completion. The patent right is granted by the state administrative department. No matter the invention, utility model or design, it needs the approval of China National Intellectual Property Administration. In China National Intellectual Property Administration, the grant of patent right is regarded as an administrative confirmation. At the same time, if anyone thinks that the granted patent right is illegal, according to the provisions of Article 45 of the Patent Law, he can only make a request for invalidation to the Patent Reexamination Board (hereinafter referred to as the Reexamination Board). It is also an administrative confirmation that the reexamination Committee makes a valid and invalid decision on the patent right. In addition, in order to meet the requirements of WTO, China introduced the judicial review system of administrative actions after joining WTO. In other words, the results of most administrative actions are no longer final, and their legality and rationality need to be examined by the court. However, according to Article 77 of China's Administrative Procedure Law, the court can only change an obviously improper administrative penalty or an administrative act that determines the wrong amount. Therefore, the court under the jurisdiction of the Reexamination Committee cannot directly modify the decision of the Reexamination Committee, but the Reexamination Committee can make a new decision. In other words, Chinese courts can't directly judge whether a patent is valid in civil litigation. Only the court under the jurisdiction of the Reexamination Board, namely Beijing Intellectual Property Court and its superior Beijing High Court, can examine whether the decision of the Reexamination Board is legal in administrative proceedings, thus indirectly determining the effectiveness of the patent. In the civil procedure of patent infringement litigation, all courts can only make judgments on the basis of presumption of patent validity, and participants in the litigation, including the original defendant, cannot question the validity of patent right. If the accused infringer thinks that the patent involved in the infringement lawsuit is illegal, then in response, the accused infringer can separately request the reexamination board to declare the patent invalid; And/or claim a non-infringement defense in patent infringement litigation. In other words, the accused infringer claims that the patent is illegal and the patent should be invalid, which is an invalid defense.