Legal basis and working procedure of patent appraisal
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 a special issue, it shall submit it to the statutory appraisal department for appraisal." (2) Article 25 of "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "The parties shall apply for identification within the time limit of proof." ③ Relevant provisions of the Decision of the NPC Standing Committee on the Management of Judicial Appraisal.
In China, a considerable part of the patent enforcement functions are carried out 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. Application and review of the basis for obtaining occupational patent right in China National Intellectual Property Administration. 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 the handling of patent infringement disputes within its administrative area.
Civil litigation procedure is the most common procedure for general rights relief. When the patent right is infringed, it is also an important way of relief, and it is also a way of relief that exists in all countries in the world. In judicial relief, whether it is the application for pre-litigation injunction or the procedure of litigation in this case, the appraisal center needs to issue an appraisal report to confirm whether the accused infringing product or method falls into the scope of patent protection.
article 1 of the NPC Standing Committee's decision on the management of judicial expertise stipulates: "judicial expertise refers to the activities in which appraisers use science and technology or specialized knowledge to identify 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, and it should also be understood as including the judicial expertise unit to which the appraiser belongs.
in China's judicial practice, patent appraisal follows the following general procedures.
1 the people's court entrusts the patent appraisal center, and hands over the evidence such as the accused infringing object in kind to the patent appraisal center. The patent appraisal center shall be selected by both parties of the original defendant, or the people's court shall designate a patent appraisal center ex officio to carry out the patent appraisal of the case on the premise that both parties of the original defendant cannot select the same patent appraisal center. When handling the formalities of entrusting a patent appraisal center, the court shall hand over the evidence related to technical appraisal in the case, such as the alleged infringing objects, patent claims and instructions, to the patent appraisal center.
2 the patent appraisal center shall determine the technical experts who will participate in the appraisal work as soon as possible, and introduce the relevant cases to the above technical experts. After the selection of the above-mentioned expert list, it shall be kept confidential to both parties to the lawsuit.
3 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 technological knowledge and means to solve the specialized problems involved in litigation according to law after accepting the patent appraisal application. 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 appraisal is a legal activity at the same time. The activities of judicial appraisal must be carried out in accordance with the law and the basic principles of patent infringement judgment, and the technical content of the request for appraisal and the necessary technical characteristics of the patent claims involved should be compared one by one to judge whether the technical characteristics and technical solutions 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, the patent appraisal work is to assist the people's court to solve the specialized problems involved in litigation, which is highly professional.
Time limit of patent appraisal and professional problems of patent appraisal
Whether the patent appraisal center can complete the patent appraisal work efficiently 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 specialty of 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 work 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. On November 14, 23, the Higher People's Court of Fujian Province, which presided over the case, entrusted Huake Intellectual Property Appraisal Center of China Science and Technology Law Society to conduct technical appraisal on the protection scope of the plaintiff's invention patent claim and the similarities and differences of the technical scheme used by the defendant. On January 27th, 25, 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 not make a civil judgment until the patent appraisal center entrusted by the court has completed 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 process of patent appraisal 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, it can't drive the infringer out of the market properly, and 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 determine 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 patent appraisal center involve the following issues; What exactly 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 field involved? What is the professional level of appraisal experts? What is the expert's judgment basis? Wait a minute. If the professional problems of patent appraisal center are not solved well, it will cause problems such as low quality of appraisal report, or lead to long delay in patent appraisal, which will have a serious impact on both plaintiff and 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 alleged infringing object are the same as, equal to 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 is likely to lead to differences in the appraisal conclusions made by different experts. This issue needs to be paid attention to by relevant departments.
Suggestions on improving patent appraisal
As one of the court evidences, the quality of judicial appraisal 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 judicial expertise center should have stricter operating procedures, stricter technical specifications and stricter quality assurance requirements than that of other scientific and technological institutions.
therefore, we suggest that, first of all, the relevant departments in our country should make provisions that are in line with the national conditions, including the time limit for the patent appraisal center to make a decision on whether to accept the patent appraisal and the time limit for making a formal appraisal report, as well as standardizing the appraisal procedures, unifying the appraisal standards and ensuring the procedural justice in patent litigation. Secondly, in patent litigation, the people's court should implement the Supreme People's Court's Regulations on the Administration of Judicial Appraisal Entrusted by People's Courts, and use its powers to make necessary regulations on the steps of arranging patent appraisal or re-appraisal, so as to avoid the consequences of prolonged appraisal due to the failure of the plaintiff and the defendant 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, and earnestly doing a good job in the reserve and utilization of judicial expertise talents, so as to make the judicial expertise work standardized, procedural and institutionalized according to law, and ensure that the appraisal conclusions are scientific, objective and fair.