How to give full play to the advantages of patent protection for utility models

On the other hand, because utility model patents can be authorized without substantive examination, there are some weaknesses such as unstable rights and high efficiency. If not handled properly, the advantages of utility model patent protection will not be brought into play, but will lead to related problems that are contrary to the purpose of patent system establishment. Therefore, it is necessary for us to first consider the balance of interests in the utility model system. There is no doubt about the balance of interests in the protection of utility model system. As a part of intellectual property rights, utility model patents protect the private rights of individuals. On the other hand, patent law is a social standard law, and its legislation focuses on striving for and safeguarding social interests. Patent law is in the form of protecting the rights of patentees, and its purpose is to promote the scientific and technological progress and innovation of the whole society. There is nothing wrong with its legislative intention. However, if the protection of private rights is infinitely expanded, it will lead to the violation of public rights. Because of the instability of rights, this conflict becomes particularly prominent in the patent right of utility model. For example, even if a utility model itself has problems such as lack of creativity or novelty, it can successfully obtain a patent right without actual trial procedures. In this case, on the one hand, many inventors will give up inventions that could have applied for invention patents because of the fast authorization and low cost of utility models, which is undoubtedly contrary to the purpose of patent law to promote inventions; On the other hand, because there is no need to go through actual trial procedures, the utility model system provides a legal way for some people who are eager for quick success or even want to get something for nothing to "steal" their own rights. Some malicious "power thieves" can not only legally "steal" the legal rights of others or the public through the utility model system, but also "abuse" the utility model patents they have obtained, attack competitors and obtain so-called "infringement" compensation. The legislation of the utility model system has considered the above contradictions. The legal provisions on the search report of utility model patent right and the suspension procedure in infringement disputes are all restrictions on the obligee, especially in the case of malice, and are the protective barriers for public rights from improper infringement. However, if the law does not properly regulate this, or lacks operability and does not play the role of barrier protection, the patent protection of utility model can only become a legal weapon for "obligee" and "thief" to abuse their rights and infringe on the legitimate rights and interests of others and the public. Therefore, we will consider how to maintain this barrier as a starting point in the discussion of related issues below. We should not arbitrarily exaggerate the function of the search report of utility model. The search report of utility model is the preliminary evidence of the validity of the patent right of utility model, but we should not arbitrarily exaggerate the function of the search report, let alone use it as the only evidence of the validity of the patent right of utility model. Although the retrieval report was made by the patent administrative department of the State Council, it is not an administrative decision in essence and cannot replace the invalid decision of the Patent Reexamination Board. Judging from the content of the retrieval report, the retrieval report is only aimed at the novelty and creativity of the patent, based on the patent literature, and can do nothing about a large number of public information, so its conclusion can only be used as a reference. According to the law, no one can request to retrieve the report except the patentee. Its purpose is to avoid too many retrieval reports and unduly increase the workload of China National Intellectual Property Administration; For the accused infringer, relevant searches can be conducted by himself or through social intermediary agencies, and the retrieved patent documents or search reports can be used as an important basis for the accused infringer's defense. However, in practice, there is often a misunderstanding: based on its search report, the obligee denies the patent documents or search reports retrieved by the accused infringer himself or through social intermediary agencies, and thinks that its search report is legal and issued by China National Intellectual Property Administration, and its legal effect is greater than that made by social intermediary search agencies. The above viewpoint is wrong, because there is no difference between retrieval reports. As long as the content is correct and the form is legal, the search reports made by different search agencies can be used as the basis for finalization. Because the search scope of the search report is only limited to relevant patent documents and professional publications at home and abroad, accounting for only a small part of public publications, it is obviously not comprehensive enough to judge whether the utility model patent may be invalid in the process of infringement litigation. At present, about half of all disputes over invalidation of utility model patents are based on novelty and creativity, excluding reasons for invalidation such as insufficient publicity and unsupported instructions. So from this perspective, the search report can only be used as reference evidence whether it can be invalidated. In addition, human factors such as the professional quality and working attitude of the retrieval personnel may also have an impact on the retrieval results. There is always a pair of contradictions in the suspension of infringement litigation in utility model patent infringement litigation, that is, on the one hand, due to the uncertainty of rights, the judgment of infringement cases should be based on invalid cases; On the other hand, because the court or the patent management authority can't wait for the final result of the invalid case for a long time, especially there are cases where the accused infringer deliberately raises the patent invalidation defense on the grounds of obvious unfounded, so as to avoid or delay being punished by law. In cases and disputes over utility models, we should fully consider the advantages and disadvantages of patent protection for utility models, pay more attention to public interests while protecting the rights holders' interests, and avoid invalid utility model patents infringing on the legal rights or public rights of others. At the same time, the court or the patent administration organ should give more reasonable consideration to the retrieval report and suspension. In a word, the patent right of utility model may infringe upon the legitimate rights and interests of others because of the instability of its own rights. As a case and dispute involving the patent right of utility model, the most important thing is to balance two relations: one is to balance the interests of the obligee and the public; Second, the balance between the fairness of judicial or administrative law enforcement and the efficiency of handling cases. Only by doing the above two points can the patent protection system for utility models truly become the driving force and source for the good development of China's patent system.