As mentioned above, patent infringement litigation is often accompanied by the invalidation procedure of patent right. In order to coordinate the relationship between infringement litigation and patent invalidation procedure, the Supreme People's Court 1985 "Notice on Several Issues in Patent Trial" stipulates as follows: In the trial of patent infringement litigation, if the defendant counterclaims that the patent right is invalid, the people's court shall inform the defendant to handle it in accordance with the provisions of Articles 48 and 49 of the Patent Law; During this period, the people's court accepting the infringement lawsuit may suspend the lawsuit according to the provisions of the Civil Procedure Law, and then resume the patent infringement lawsuit after the patent is valid or invalid. Accordingly, people's courts generally apply the procedure of suspending the trial to avoid the contradiction between the judgment and the retrial decision and maintain the stability of the court's judgment.
However, because there is no legal limit on the filing period of the patent invalidation procedure, many cases that have been suspended must be resumed after a long time. However, during this period, it is often used by infringers, resulting in various negative effects. It can be said that the invalidation procedure of patent right has become a difficult problem that puzzles patent infringement litigation.
1. The trial period of patent infringement cases is prolonged, which makes the trial more difficult, and infringers often use this period to continue their infringement. Because the patent reexamination board has a long trial period, it usually takes more than one year; If you refuse to accept the decision of the Patent Reexamination Board, you can also bring a lawsuit to the Beijing Intermediate People's Court. This makes some patentees from filing an infringement complaint to the defendant's request for invalidation, the invalid case is concluded, and then the infringement case is resumed and concluded, and the time ranges from 23 to 45 years. During this period, the infringer often continues to infringe without restriction, and the court also faces difficulties in obtaining evidence.
2. Most of the infringing defendants are small and medium-sized enterprises, which are easy to transfer assets, withdraw funds or take other ways to evade tort liability, so that they cannot be punished by law in time, and their patent rights cannot be protected by law in time and effectively.
3. The request for invalidation is regarded by the defendant as an important means to delay the lawsuit, which makes it impossible for the people's court to conclude the case in time, resulting in a waste of manpower, material resources and financial resources, which violates the principle of litigation economy. Moreover, because infringement cases can not be closed in time, infringers often benefit a lot, which encourages their infringement arrogance to a certain extent, making the infringement phenomenon increase day by day, and the patent infringement cases also increase, which is a vicious circle.
4. The request for invalidation of the patent right makes the patent right in an uncertain state, and the effective implementation of the patent right is affected. The licensing and transfer of patent right is actually impossible, which directly affects the interests of patentees; But also enable others to exploit the patent for free without restriction during this period.
Three. Legal Countermeasures to Eliminate the Negative Effects of Patent Invalidation on Infringement Litigation Based on the above problems, the Supreme People's Court 1992 "Answers to Several Issues in the Trial of Patent Disputes" (hereinafter referred to as "Answers") stipulates that after accepting the infringement case of utility model patent or design patent, the people's court shall inform the defendant that if the patent is to be declared invalid, it must submit it to the Patent Reexamination Board during the defense period; If the defendant requests to declare the patent right invalid during the defense period, the people's court shall suspend the lawsuit; If the defendant did not make a request for invalidation of the patent right during the defense period, but made a request for invalidation in the subsequent trial, the people's court may not suspend the trial. If the defendant requests the invalidation of the patent right during the defense period, the people's court shall not suspend the trial of the infringement case of the invention patent accepted by the people's court or the infringement case of the utility model that has been examined by the Patent Reexamination Board to maintain the patent right.
However, according to the provisions of the Answer, the people's court will still suspend the trial of a considerable number of patent infringement cases after the defendant requests invalidation. In order to protect the rights and interests of the patentee and effectively solve the problems caused by the defendant's request to declare the patent invalid in patent infringement litigation, it is necessary to modify the patent invalidation procedure in legislation and reform the patent trial system in order to realize the original intention of the patent invalidation procedure. The author believes that we can start from the following aspects:
1. In the litigation of patent infringement cases, if the defendant makes a request for invalidation of the patent right, it shall submit the original request for invalidation of the patent right and relevant evidential materials to the Patent Reexamination Board; Submit the copy and relevant evidential materials to the court that accepts the patent infringement lawsuit (this lawsuit) for the people's court to decide whether to suspend the trial. The Patent Reexamination Board shall give priority to the request for invalidation in patent infringement litigation; The Patent Reexamination Board may be considered to set up a special body to accept the case and stipulate that the case should be closed within a certain period of time (such as six months), so as to improve efficiency and avoid protracted cases.
2. The people's court shall examine the counterclaim copy and relevant evidential materials submitted by the defendant. If there is no substantive reason, the request for invalidation of the patent may be regarded as delaying the lawsuit without suspending the trial. Moreover, when the Patent Reexamination Board maintains the validity of the original patent right, it will charge the infringer a high trial fee (for example, 65438+ 0 times of usual). If the defendant continues to infringe and expand the infringement during this period, it shall compensate the loss of the patentee in double indemnity.
3. If the people's court files a patent infringement case on the grounds that the defendant requests to declare the patent invalid, and the plaintiff patentee files an application for litigation preservation and provides property guarantee, the trial will not be suspended. And may order the defendant to stop the infringement or take relevant measures to prevent the expansion of the infringement. If the patentee wins the case and the patent right is finally deemed invalid, the plaintiff shall bear all the losses of the defendant back to the time of the case, and the effective guarantee fee for the patent right will not be refunded.