Can the patent exclusive licensor make a decision of invalidation?

On June 5438+ 10, 2006, the patent office granted Li an invention patent named "furnace cover". From June, 5438 to February, 2007, Li signed a patent licensing contract with Zhejiang Meida Company (hereinafter referred to as Meida Company), stipulating that Li would allow Meida Company to exclusively exploit the above patents and grant sub-licensing rights at the same time. If the patent right is declared invalid, this contract will be automatically terminated. The American company paid Ali a patent license fee of 320,000 yuan. In June 2009, an American company entrusted its agent Xu to buy a JZT-JC-A22 1 1 integrated kitchen appliance produced and sold by the company (hereinafter referred to as the company) in a shopping mall in Xuhui District, Shanghai. By comparison, it is found that the technical characteristics of the furnace cover plate in the above-mentioned electrical appliances belong to the protection scope of the patents involved. In August of the same year, the American company sued the defendant Lin and Morishima Company for infringing their invention patents. After investigation, the cover plate of the stove in the above-mentioned electrical appliances was purchased by Sendao Company from Ningbo Accessories Factory wholly owned by Li. Later, the case was suspended due to a patent licensing contract dispute between an American company and Li, and was filed in a Zhejiang court. 20 1 1 In May, the Patent Reexamination Board of the State Intellectual Property Office accepted Morishima Company's request for invalidation of the patent involved in Li's case. In September, the Patent Reexamination Board made an examination decision, declaring the patent claims 1, 2 and 4 invalid, and continuing to maintain the patent validity on the basis of claims 3, 5- 10. Disagreements In this case, there are two opinions about whether American companies can file an administrative lawsuit against the decision made by the Patent Reexamination Board on the request for invalidation. The first view is that American companies have no right to bring administrative proceedings because they are not the requester and patentee of the decision on the request for invalidation and do not have the subject qualification to bring administrative proceedings against the decision on the request for invalidation; The second view is that American companies have the right to bring administrative proceedings on the grounds that American companies have a legal interest in the decision on the request for invalidation and have the right to bring administrative proceedings. I agree with the second opinion. The reason is: 1 Several Provisions of the Supreme People's Court on the Application of Law in the Trial of Patent Dispute Cases clearly points out that a case that refuses to accept the decision of the Patent Reexamination Board on the request for invalidation of a patent right is one of the types of patent dispute cases accepted by the people's courts. According to this judicial interpretation, its legislative basis includes not only the civil procedure law, but also the administrative procedure law. The decision on the request for invalidation is an administrative decision made by the Patent Reexamination Board in accordance with the Patent Law and its detailed rules for implementation and other administrative laws and regulations, aiming at the request of a unit or individual that the authorized patent should be declared invalid because it does not conform to the relevant provisions of the Patent Law, which can have corresponding legal effect on the right holder of the requested patent. As an administrative legal act, it should be included in the judicial review scope of the people's court. 2. The Patent Law does not limit the qualification of the subject to bring a lawsuit against the decision of the request for invalidation. Some people think that Article 46 of the Patent Law stipulates: "The Patent Reexamination Board shall promptly examine and make a decision on the request for invalidation of the patent right, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council. Anyone who refuses to accept the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right may bring a lawsuit to the people's court within three months from the date of receiving the notice. The people's court shall notify the other party to the request for invalidation procedure to participate in the proceedings as a third party. " This provision shows that the parties who have the right to file an administrative lawsuit against the request for invalidation are the claimant and the patentee, and other subjects do not have the qualification of litigation subject. The author holds different opinions on this, because according to the provisions of Article 8 of the Legislative Law, matters related to the litigation system can only be stipulated by law. The qualification of the parties in administrative litigation shall be stipulated by the administrative litigation law, and if it is otherwise stipulated by the special law, it shall be clearly stated. Among them, in jurisprudence, just like Article 8 1 of the Law on Exit and Entry Administration, it is clear that the decision of the Ministry of Public Security to expel foreigners for illegal acts is final, thus excluding this administrative act from the judicial review of the people's court. However, according to the basic method of literal interpretation, we can't interpret the content of qualification restriction of administrative litigation subject from the provisions of Article 46 of the Patent Law. 3. The licensee who exclusively implements the licensing contract is the interested party of the requested patent. "Several Provisions of the Supreme People's Court on the Applicable Law for Stopping Patent Infringement before Litigation" clarifies the scope of applicants for pre-litigation injunction in patent infringement litigation, that is, "interested parties who apply, including licensees of patent licensing contracts and legal successors of patent property rights. Among the licensees of a patent licensing contract, the licensee who exclusively implements the licensing contract may apply to the people's court separately; If the patentee does not apply, the licensee who exclusively implements the licensing contract may apply. " Based on the standpoint of institutional interpretation, the scope of patent stakeholders should be applied as a whole in patent legal norms. In fact, the licensee of a monopoly licensing contract exclusively uses the patents involved, excluding the use of the patentee itself. Therefore, the interest relationship between the patentee and the patent involved is obvious. In this case, the American company has paid the corresponding contract consideration in order to obtain the exclusive right to use the patent involved. According to the contract, if the patent right involved is declared invalid, the contract will be terminated automatically. This also means that the paid consideration will not be returned. It can be said that the contract purpose of American companies is closely related to the validity of the patent rights involved. According to Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law, if a citizen, legal person or other organization that has a legitimate interest in a specific administrative act refuses to accept the act, it may bring an administrative lawsuit according to law. In this case, the American company is the exclusive licensor of the patent right and has a legitimate interest in the decision to declare the patent invalid, so it can bring an administrative lawsuit against the decision.