1, dispute over patent application right;
2, patent ownership dispute cases;
3, patent rights, patent application rights transfer contract dispute cases;
4. Cases of patent infringement disputes;
5. Patent dispute cases of counterfeiting others;
6, after the publication of the application for a patent for invention, before being granted a patent right;
7. Disputes over rewards and remuneration of inventors and designers of service inventions;
8. Apply for stopping infringement and property preservation cases before litigation;
9, the inventor and designer qualification dispute cases;
10, refusing to accept the decision of the Patent Reexamination Board to reject the application for reexamination;
1 1, refuses to accept the decision of the Patent Reexamination Board on the request for invalidation of the patent right;
12, case of refusing to accept the compulsory license decision of the State Council patent administration department;
13, the case of refusing to accept the ruling of compulsory license fee of the State Council patent administration department;
14, refusing to accept the administrative reconsideration decision of the State Council patent administration department;
15, refused to accept the administrative decision of the department in charge of patent work;
16, other patent dispute cases.
Interpretation of this article is about the types and scope of patent dispute cases accepted by people's courts.
According to the provisions of this article, patent dispute cases accepted by the people's courts are divided into two categories, one is civil dispute cases and the other is administrative cases. Civil cases are mainly cases specified in item 1-9 of this article, and administrative cases are mainly cases specified in item 10- 15 of this article. The following two types of patent dispute cases are divided as follows:
First, the patent civil dispute cases
(a) the patent application right dispute cases
The right to apply for a patent refers to the right of the owner, unit or individual of an invention-creation to file a patent application with the patent administration department of the State Council after the invention-creation is completed. A dispute over the right to apply for a patent refers to a dispute between the parties who have the right to apply for a patent before applying for a patent or before granting a patent right after applying for a patent.
According to the provisions of the revised Patent Law and other laws, the disputes over the right to apply for a patent mainly include: 1, disputes over service inventions and non-service inventions, mainly disputes between inventors or designers and their units about who has the right to apply for a patent for invention; 2. Disputes over who has the right to apply for a patent for an invention-creation that has been jointly completed or commissioned; 3. Debate about who is the inventor or designer.
According to "Provisions of the Supreme People's Court on the Cause of Action of Civil Cases (Trial)", cases of patent application right are generally divided into patent application right disputes and patent application right transfer contract disputes by nature. When accepting such cases, the people's court shall scientifically determine the corresponding cause of action according to the nature of the case.
(two) patent ownership dispute cases
Patent dispute means that after an invention is officially granted a patent right, the parties concerned
Who is the real owner of the patent? According to the classification of litigation in the Civil Procedure Law, patent ownership disputes should belong to confirmation litigation.
According to the provisions of the Patent Law and other laws, the disputes over patent ownership mainly include: 1, disputes caused by service inventions being patented by inventors or designers as non-service inventions and obtaining patent rights; 2, non-service inventions, disputes caused by the unit as a service invention to apply for a patent and obtain a patent right; 3, commissioned by the development of the invention-creation, in the absence of clear agreement between the parties, by the entrusted developer to apply for a patent and obtain a patent right caused by the dispute; 4. For the invention-creation developed in cooperation, under the condition that there is no contract and no other party gives up the patent application, the invention-creation is patented by one party, which leads to disputes.
When accepting a case, the people's court should pay attention to distinguish between two different cases: patent ownership dispute and patent application right dispute. There are some similarities between patent ownership disputes and patent application rights disputes, and some patent application rights disputes can be transformed into patent ownership disputes. For example, disputes involving service inventions, in the patent application stage, disputes arising from whether the unit should apply for a patent or whether the inventor or designer of the unit should apply for a patent, belong to patent application rights disputes; When the patent right is granted, whether the invention patent belongs to the service invention should be a patent ownership dispute. The main differences between these two types of disputes are: 1, and the time of disputes is different. As mentioned above, disputes over patent application rights mainly occur before patent authorization; Disputes over patent ownership mainly occur after patent authorization. 2. The focus of the dispute is different. The focus of the dispute over patent application right lies in who has the right to apply for a patent; The focus of the patent ownership case is who should own the patent right. 3. The legal status of disputed inventions is different. The invention-creation in the dispute over the right to apply for a patent is being applied for or is under examination and approval; Inventions and creations with disputes over patent ownership have been granted patent rights. The content of the argument is different. There are some similarities between patent application right disputes and patent ownership disputes. For example, after the patent right is granted, some patent application rights disputes may turn into patent ownership disputes. 5. The processing results are different. After the dispute over the right to apply for a patent is resolved, the patent administrative department of the State Council only needs to change the inventor, applicant and designer in the patent application documents, and the examination can continue; After the dispute over the ownership of the patent right is settled, the administrative department for patent in the State Council shall register in the patent register according to the effective legal documents of the people's courts and other organs and in accordance with the provisions of Articles 88 and 89 of the Detailed Rules for the Implementation of the Patent Law, and announce the change of the name and address of the patentee in the patent bulletin.
(3) Cases of patent infringement disputes
A patent infringement dispute case refers to a dispute arising from the exploitation of a patent without the permission of the patentee. In judicial practice, such disputes account for a large proportion of patent cases and are more complicated.
Article 1 1 of the Patent Law stipulates that "after the patent right for inventions and utility models is granted, the patent right shall be granted unless otherwise provided in this Law.
In addition, any unit or individual may not exploit its patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import its patented products for production and business purposes, and may not use its patented methods and use, promise to sell, sell or import products directly obtained according to the patented methods. After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import its patented products for production and business purposes. According to the provisions of this article, patent infringement mainly includes the following types: 1, the act of manufacturing patented products of inventions, utility models and designs without the permission of the patentee; 2. The act of using patented products of inventions and utility models without the permission of the patentee; 3. The act of selling or promising to sell patented products of inventions or utility models. 4. The act of importing patented products of inventions, utility models and designs; 5. Use of patented methods; 6. The act of using, promising to sell, selling or importing products directly obtained by patented methods; 7. The act of counterfeiting other people's patents. Disputes involving the above acts are all cases of patent infringement disputes.
(4) Cases of counterfeiting patents
Counterfeiting patent cases refer to cases caused by operators arbitrarily marking the patent number of the patentee on products or product packages manufactured or sold to make people believe that the product is the patent of the patentee, and using other people's patent numbers in advertising and other promotional materials and contracts without authorization. Generally speaking, the existence of valid patent right is the premise of counterfeiting other people's patents.
According to Article 84 of the Detailed Rules for the Implementation of the Patent Law, the following acts are acts of counterfeiting other people's patents: 1. Without permission, mark the patent number of others on the products or product packages manufactured or sold by them; 2. Using other people's patent numbers in advertisements or other promotional materials without permission, causing people to mistake the technology involved for other people's patented technology; 3, without permission, using the patent number of others in the contract, making people mistake the technology involved in the contract for the patented technology of others; 4. Forging or altering other people's patent certificates, patent documents or patent application documents.
In judicial practice, we should pay attention to the difference between counterfeit patent cases and counterfeit patent cases, and deal with them according to different types of cases. The so-called case of passing off as a patent refers to the cheating behavior of passing off as a patented product with a non-patented product and passing off as a patented method with a non-patented method. Impersonating a patent infringes on the public interest, which is essentially deceiving the public and undermining the patent management order and economic order. Article 59 of the Patent Law clearly stipulates that the patent administration department shall order it to make corrections, make a public announcement, and may impose a fine of not more than 50,000 yuan. Therefore, the patent administration department is responsible for investigating and dealing with patent counterfeiting, and the relevant provisions of the Patent Law, the Administrative Procedure Law and the Administrative Reconsideration Law are applicable. The cases of counterfeiting patents accepted by the people's courts are mainly cases in which the plaintiff demands to investigate the civil liability of counterfeiters. When the circumstances of such cases are serious, criminal responsibility can also be investigated according to the crime of counterfeiting others' patents.
(5) Service invention
Remuneration and remuneration disputes between personnel and designers
In the judicial interpretation of this article, according to the provisions of Article 16 of the revised Patent Law, the Supreme People's Court made it particularly clear that the dispute over the reward and remuneration of inventors and designers for their service inventions belongs to patent disputes.
Under the planned economy system, many units regard the extra remuneration given to inventors or designers for the economic benefits brought about by the implementation of service invention-creation as remuneration, without realizing that it should actually be the labor remuneration due to inventors or designers, which makes the vital interests of many inventors and designers not guaranteed. This situation is not conducive to fully mobilizing the enthusiasm of scientific and technological personnel for technological innovation. Article 13 of the Decision on Strengthening Technological Innovation, Developing High-tech and Realizing Industrialization issued by the Central Committee of China and the State Council clearly stipulates that "the post inventors, designers, authors and main implementers of intellectual property rights should be given remuneration and benefit sharing equivalent to their actual contributions." When the Supreme People's Court made this judicial interpretation, he considered the disputes over the rewards and remuneration of the inventors and designers by the parties according to the provisions of the patent law. Legal adjustments should be made. When the legitimate rights and interests of inventors and designers are infringed, there should be channels for judicial relief. Therefore, such cases should be clearly defined as patent dispute cases, so that people's courts at all levels can concretely implement the relevant decisions of the central authorities on strengthening technological innovation in judicial practice, effectively protect the actual interests of service invention creators and designers, and fully mobilize the enthusiasm of scientific and technological personnel.
(six) to apply for the cessation of infringement and property preservation cases before litigation.
The application for stopping infringement and property preservation before litigation is a new type of patent dispute case accepted by the Supreme People's Court in accordance with Article 61 of the Patent Law. For the patent infringement that is being implemented or about to be implemented, if it is not stopped immediately, let it expand the damage result, or even take corresponding measures after the whole litigation procedure is over, it may cause irreparable damage to the legitimate rights and interests of the patentee. Therefore, Article 50 of the TRIPS Agreement stipulates that, if deemed appropriate, the judicial authorities have the right to take interim measures at the request of one party before the parties bring a lawsuit. China's civil procedure law stipulates the measures of prior execution in litigation, but it does not clearly stipulate that the people's court can take measures to stop the infringement before the parties formally sue. In order to improve the legal deterrent to infringement, avoid irreparable damage to the legitimate rights and interests of the patentee, and at the same time, in order to meet the requirements of TRIPS agreement, the provisions on temporary measures have been specially added in the revision of the patent law. The Supreme People's Court also made a judicial interpretation of the relevant issues concerning the application of law to the act of ordering to stop the patent right. This judicial interpretation was promulgated and implemented on July, 20065438 1, which provided concrete legal basis and operational methods for people's courts at all levels to hear cases that were ordered to stop infringing measures before applying for litigation.
(7) Cases concerning the qualification of inventors and designers
The case of inventor and designer qualification refers to the dispute about who has made creative contributions to an invention after filing a patent application. In judicial practice, such cases
This paper mainly deals with the issue of signature and the subsequent remuneration and remuneration.