First of all, considering the reality of patent protection in China, it is necessary to carefully examine the demand of the obligee for patent administrative law enforcement:
First, patent infringement activities are extensive, and product counterfeiting and technical plagiarism are common among peers. Infringed products have spread from traditional sales channels to e-commerce platforms.
Second, the situation of infringing industrial chain is obvious, and the division of labor is meticulous from the aspects of equipment supply, manufacturing, transportation and sales of infringing products. Based on the ecology of this industrial chain, even the centralization and regionalization of infringement activities have been formed.
Third, the infringement is hidden and it is difficult to obtain evidence, especially some patent infringement involving production equipment, which is often impossible or difficult to obtain evidence by relying on the strength of the right holder and his agent.
Fourth, the cost of safeguarding rights is high. The lower compensation obtained through litigation is not only difficult to repay the economic contribution of rights protection, but also consumes the time and energy of the obligee in a relatively long litigation cycle. ?
From the data point of view, patent administrative law enforcement effectively diverted the civil litigation cases of the obligee and reduced the trial burden of the court. In 20 13 years, the growth rate of first-instance cases of intellectual property rights newly accepted by local courts nationwide decreased from 45.99% in the previous year to1.33%; Newly-received cases of administrative and criminal first instance of intellectual property rights decreased from 20.35% and 129438+0% in the previous year to 1.43% and 28% respectively. Although some right holders will continue to solve disputes through civil litigation after requesting administrative law enforcement, most right holders will not continue to seek judicial protection after administrative law enforcement, and even have settled or mediated the case with the infringer at the stage of administrative law enforcement. ?
From the perspective of cooperating with patent judicial protection and providing diversified dispute resolution methods, it is indeed necessary to retain or even strengthen patent administrative law enforcement in China, and it is also of considerable importance. In order to further strengthen patent administrative law enforcement and intensify law enforcement, in the future, we need to focus on solving the following problems:
First, solve the problem of patent administrative law enforcement system construction.
Administration according to law is the basic idea of a country ruled by law. However, the lack of resources in the current patent administrative law enforcement system hinders the development of law enforcement. For example, according to Article 79 of the Detailed Rules for the Implementation of the Patent Law, only the patent administrative departments of the provinces and municipal governments with districts have the patent administrative enforcement power. China is vast in territory and abundant in natural resources, and many provincial administrative divisions are also vast in territory. It is obviously difficult to meet the practical needs of many patentees to protect their rights only by relying on the provincial and municipal governments with districts. ?
Second, solve the problem of insufficient local administrative law enforcement resources. Due to the limitation of organization, many staff members of patent administrative law enforcement agencies are assigned to be responsible for administrative management-related work, or both management and law enforcement. The number of administrative law enforcement personnel is obviously insufficient, which seriously affects the efficiency and social effect of relevant law enforcement work. In particular, there is a lack of clear law enforcement agencies in local patent enforcement, and most local patent management departments do not clearly mark the word "law enforcement" in their office settings, which easily makes people mistakenly think that there is no patent enforcement agency. At the same time, due to insufficient staffing, scarce law enforcement personnel and limited law enforcement funds, the existing institutional setup and staffing are far from meeting the needs of normal work, which in fact leads to the embarrassing situation that "patent law enforcement agencies do not enforce the law" in some places. In addition, the conditions for patent enforcement are poor, and even lack material security measures such as law enforcement vehicles and law enforcement equipment. ?
Third, solve the problem of insufficient patent administrative law enforcement.
In 20 13, the national administrative law enforcement organs filed a total of 262,000 cases of infringing intellectual property rights and manufacturing and selling fake and inferior commodities. However, in 20 13, the number of patent dispute cases handled by the national intellectual property system just exceeded 5000. In 20 13, China * * * accepted 2.377 million patent applications, up 15.9% year-on-year. Compared with the rapid increase in the number of patent applications in China and the increasingly huge grand occasion, the number of patent administrative law enforcement cases in China has not increased significantly. This is enough to show that China's patent administrative law enforcement power is weak and needs to be strengthened urgently.
Fourth, solve the problem of low transparency in patent administrative law enforcement. In March 2006, "China Intellectual Property Judgment Document Network" was officially opened. This initiative to implement the principle of openness and transparency in trials has won wide acclaim. In contrast, in the past, the information transparency of administrative enforcement of intellectual property rights was not high, and it was not even convenient to obtain more specific and detailed administrative enforcement data, and it was even more difficult to obtain the handling of specific cases. However, with the issuance of the State Council 20 13 "National Key Points for Combating Infringement of Intellectual Property Rights and Manufacturing and Selling Fake and Inferior Commodities", it is clearly required to promote the disclosure of case information, and the information transparency of patent administrative law enforcement cases in China will be further enhanced. This move may relieve some experts' concerns about law enforcement corruption, and also greatly urge the improvement of administrative law enforcement ability and the standardization of administrative law enforcement procedures. ?
In addition, due to the limited means and weak strength of patent administrative law enforcement, the phenomenon of abusing patent administrative law enforcement is not obvious. If we want to strengthen patent administrative law enforcement in legislation and implementation in the future, we should actively prevent the abuse of administrative law enforcement.
Enhancing the advantages of patent administrative law enforcement, giving full play to the role of patent administrative law enforcement and protecting the legitimate rights and interests of patentees will certainly promote economic and social development.
Sources of information—
_ 964884.html China National Intellectual Property Administration:/ztzl/qtzt/jxzlxzzf/ztwz/201406/t2013.