Legal basis of patent evaluation
And working procedures.
The legal basis of patent appraisal in China's patent litigation mainly includes: ① Article 72 of the Civil Procedure Law stipulates: "If the people's court deems it necessary to appraise specialized issues, it shall submit them to the statutory appraisal department for appraisal." (2) Article 25 of "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" stipulates: "The parties shall apply for identification within the time limit of proof." (3) the relevant provisions of the ③《NPC Standing Committee's Decision on the Administration of Judicial Appraisal.
A considerable part of China's patent enforcement functions are undertaken by the patent administrative department of the State Council and the patent administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government. China National Intellectual Property Administration's application and examination for obtaining the basis of professional patent right. The Patent Reexamination Board of the State Intellectual Property Office is fully responsible for the reexamination and invalidation of patent validity doubts. The patent administrative department of the provincial people's government is responsible for handling patent infringement disputes within its administrative area.
Civil procedure is the most common general right relief procedure. When the patent right is infringed, it is also an important remedy, and it is also a remedy that exists in all countries of the world. In judicial relief, whether it is the application for pre-litigation injunction or the litigation procedure of this case, the appraisal center needs to issue an appraisal report to confirm whether the accused infringing product or method belongs to the scope of patent protection.
Article 1 of the NPC Standing Committee's Decision on the Administration of Judicial Appraisal stipulates: "Judicial Appraisal refers to the activities in which appraisers use science and technology or specialized knowledge to appraise and judge the specialized issues involved in litigation and provide expert opinions." It is pointed out that the subject of judicial expertise is the appraiser, which should also be understood as including the judicial expertise unit to which the appraiser belongs.
In the judicial practice of China, patent evaluation follows the following general procedures.
1 The people's court entrusts the patent appraisal center to hand over the material evidence suspected of infringement to the patent appraisal center. The patent appraisal center shall be selected by both parties of the original defendant, or under the premise that both parties of the original defendant cannot select the same patent appraisal center, the people's court shall designate a patent appraisal center ex officio to conduct patent appraisal in this case. When handling the formalities of entrusting a patent appraisal center, the court shall hand over the accused infringing object, patent claims, instructions and other evidence related to technical appraisal to the patent appraisal center.
The patent appraisal center shall determine the technical experts involved in the appraisal as soon as possible and introduce the relevant information to the above technical experts. After the above-mentioned expert list is selected, it shall be kept confidential for both parties to the lawsuit.
The Patent Appraisal Center will hold a technical appraisal meeting as soon as possible for appraisal, and write an appraisal report and submit it to the entrusting unit, namely the people's court.
The duty of the patent appraisal center is to use scientific and technical knowledge and means to solve the special problems involved in litigation according to law after accepting the application for patent appraisal. Patent appraisal must use the principles of science and technology, rely on technical equipment, and rely on the expertise and experience of appraisers to judge the specialized issues involved in litigation, which is a scientific activity. Patent evaluation is also a legal activity. Judicial authentication activities must be carried out in accordance with the basic principles of law and patent infringement judgment, and the technical content of the authentication request and the necessary technical features of the patent claims involved are compared one by one to judge whether the technical features and technical schemes of the two are the same, equal or different. Then the Patent Appraisal Center will issue a formal appraisal report to the entrusting party. To sum up, patent appraisal is to assist the people's court to solve the specialized problems involved in litigation, which is very professional.
The time limit of patent evaluation and the professional problems of patent evaluation
Whether the patent appraisal center can efficiently complete the patent appraisal work will play an extremely important role in the duration of patent litigation activities. Whether the patent appraisal center can complete the patent appraisal work with high quality, that is, whether it can accurately analyze the necessary technical characteristics of the patented technology and the technical characteristics of the accused infringing technology, is an extremely important work in patent litigation activities. This involves the time limit and professionalism of the patent appraisal center.
Although the responsibilities of the patent appraisal center are clear, the current laws and regulations do not clearly stipulate the appraisal time limit from accepting the appraisal application to issuing a formal appraisal report. Therefore. The length of time for a patent appraisal center to complete a patent appraisal depends entirely on the specific circumstances of the case. For example, the first trial of the dispute between Wuhan Jingyuan Environmental Engineering Co., Ltd. and Japan Fuji Chemical Industry Co., Ltd. and Huayang Electric Power Co., Ltd. took seven years. In June165438+April, 2003, the Higher People's Court of Fujian Province entrusted Huake Intellectual Property Appraisal Center of China Science and Technology Law Society to carry out technical appraisal on the protection scope of the plaintiff's invention patent claim and the identity of the technical scheme used by the defendant. On June 27th, 2005, 65438+ Huake Intellectual Property Appraisal Center of China Science and Technology Law Society made a judicial appraisal. Judicial expertise takes more than a year. This case proves that the patent appraisal center needs more time to complete the patent appraisal entrusted by the people's court for extremely complicated technical appraisal work.
As we all know, the court hearing the case will make a civil judgment only after the patent appraisal center entrusted by the court completes the appraisal report. However, the patent right is the exclusive right enjoyed by the patentee for his invention and creation achievements within a certain period of time, and the patent right has great commercial value. When the lawsuit goes through a long patent appraisal process and the patent invalidation review procedure of the Patent Reexamination Board, it will be harmful to both parties. From the plaintiff's point of view, because the patentee can't get a successful judgment immediately and can't drive the infringer out of the market properly, its original competitive advantage position of patented technology will drop sharply or even be lost, resulting in huge losses to the patentee's commercial interests; From the defendant's point of view, the defendant can't be sure whether to stop the relevant behavior as soon as possible, because he can't immediately know whether there is any infringement.
The professional problems of the patent evaluation center involve the following questions: What does the patent appraisal center appraise? Is there a unified operating standard for the appraisal work of the patent appraisal center? Does the expertise of the experts in the patent appraisal center match the technical fields involved? What is the professional level of appraisal experts? What is the expert's judgment basis? Wait a minute. If the professional problems of the patent appraisal center are not solved well, it will cause problems such as low quality of the appraisal report, or lead to a long delay in patent appraisal, which will have a serious impact on both the plaintiff and the defendant. In judicial practice, there is no uniform operating standard for many professional and technical problems in patent appraisal, which will definitely affect the appraisal work of patent appraisal center. For example, when judging whether the technical characteristics of the accused infringing object are the same as, the same as or different from the technical characteristics necessary for the patent, there are certain differences in the breadth and depth of the professional knowledge mastered by experts, which will easily lead to differences in the appraisal conclusions made by different experts. This problem needs to attract the attention of relevant departments.
Suggestions on Perfecting Patent Evaluation
As one of the court evidences, the quality of judicial expertise report is directly related to the effective protection of the legitimate rights and interests of citizens, legal persons and other organizations, judicial justice and social harmony. Therefore, the work of the judicial expertise center should have stricter operating procedures, stricter technical specifications and stricter quality assurance requirements than other scientific and technological institutions.
Therefore, we suggest that, first of all, the relevant departments of our country should stipulate the time limit of the patent appraisal center in line with the national conditions, including the time limit for the patent appraisal center to decide whether to accept the patent appraisal work and make a formal appraisal report, as well as the time limit for standardizing the appraisal procedures, unifying the appraisal standards and ensuring the fairness of patent litigation procedures. Secondly, in patent litigation, the people's court shall implement the Provisions of the Supreme People's Court on the Administration of Judicial Appraisal Entrusted by People's Courts, and make necessary provisions on the steps of arranging patent appraisal or re-appraisal, so as to avoid the consequences of prolonged appraisal time caused by the plaintiff and defendant's failure to reach an agreement on the choice of patent appraisal center. Finally, it is suggested that relevant departments should improve relevant systems to ensure the quality of judicial expertise, including organizing activities to verify the ability of judicial expertise, further strengthening the quality inspection of judicial expertise, earnestly doing a good job in the reserve and utilization of judicial expertise talents, making judicial expertise standardized, procedural and institutionalized according to law, and ensuring scientific, objective and fair appraisal conclusions.