美中发明专利权利冲突比较研究
发布时间：2018-07-24 12:46
【摘要】：近年来,世界各国特别是美中两国发明专利申请和授权数量迅猛增加,专利丛林效应开始显现,专利实施困难,我国也出现了非正常申请的行为,种种迹象表明专利权过多、过密已经导致了专利权的种种冲突,引发了其他一系列诸如专利授权质量下降、甚至专利投机行为等问题,专利制度危机的论调开始蔓延。 基于此,本文首先从美中两国取得专利权的现状入手,介绍了美中两个知识产权大国基于专利权激增导致权利冲突的一些问题。其次,系统梳理了美中两国防止权利冲突制度各自庞杂的规定及相关表现,重点分析了防止权利冲突制度下的抵触申请、重复授权及其相互关系。再次,为避免两国先发明和先申请制度的差异,将美国推定发明日的有效申请日与中国申请日对应为基础、假设没有其它证据推翻其推定发明日为前提,从而得出了两国防止权利冲突制度之间的差异。最后,根据上述差异并结合我国防止权利冲突的现行制度,从审查的程序和实体两方面给出了防止权利冲突制度的具体措施和建议,主要通过澄清解释的方式完善时限和流程方面的程序规定,通过同时提升抵触申请和重复授权的审查标准的实体规定,并辅以配套措施,使之彼此统一并与后续司法程序统一。 上述具体的措施及建议有助于逐步提升专利权之间的区别,减小专利权家族的尺寸,避免专利权过差、过多,有效防止专权利之间的相互冲突,进而某种程度上避免不公地延长专利权的保护期限和滥用专利权,发挥专利制度的激励作用,具有一定的实践操作性和理论前瞻性。
[Abstract]:In recent years, the number of patent applications and authorizations for invention in countries all over the world, especially in the United States and China, has increased rapidly, the patent jungle effect has begun to appear, the implementation of patents is difficult, and there have also been abnormal applications in our country. All kinds of indications show that there are too many patent rights. Overtightness has led to various conflicts of patent rights, caused a series of other problems such as the quality of patent licensing, even patent speculation, and the theory of patent system crisis began to spread. Based on this, this paper begins with the current situation of patent rights obtained by the United States and China, and introduces some problems caused by the conflict of rights caused by the surge of patent rights in the two major intellectual property countries of the United States and China. Secondly, it systematically combs the various regulations and related performances of the system of preventing the conflict of rights between the United States and China, focusing on the analysis of the conflict application, repeated authorization and their relationship under the system of preventing the conflict of rights. Thirdly, in order to avoid the difference between the first invention system and the first application system between the two countries, the valid filing date of the United States presumption invention date is corresponding to the Chinese application date, assuming that there is no other evidence to disprove the presumption invention date. Thus, the difference between the two countries' system of preventing the conflict of rights is obtained. Finally, in the light of the above-mentioned differences and in the light of the existing system of preventing conflicts of rights in our country, the specific measures and recommendations for the system of preventing conflict of rights are given from both the procedural and the substantive aspects of the review, It mainly improves the procedural provisions in terms of time limit and process by means of clarification and interpretation, and unifies them with the subsequent judicial procedures by upgrading the substantive provisions that conflict with the standards of review of applications and repeated authorizations, and supplemented by supporting measures. The above specific measures and suggestions will help to gradually improve the distinction between patent rights, reduce the size of the patent family, avoid excessive patent rights, and effectively prevent conflicts between exclusive rights, To some extent, to avoid the unfair extension of patent protection period and abuse of patent rights, to give play to the incentive role of the patent system, has a certain degree of practical operation and theoretical foresight.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.42;D971.2
[Abstract]:In recent years, the number of patent applications and authorizations for invention in countries all over the world, especially in the United States and China, has increased rapidly, the patent jungle effect has begun to appear, the implementation of patents is difficult, and there have also been abnormal applications in our country. All kinds of indications show that there are too many patent rights. Overtightness has led to various conflicts of patent rights, caused a series of other problems such as the quality of patent licensing, even patent speculation, and the theory of patent system crisis began to spread. Based on this, this paper begins with the current situation of patent rights obtained by the United States and China, and introduces some problems caused by the conflict of rights caused by the surge of patent rights in the two major intellectual property countries of the United States and China. Secondly, it systematically combs the various regulations and related performances of the system of preventing the conflict of rights between the United States and China, focusing on the analysis of the conflict application, repeated authorization and their relationship under the system of preventing the conflict of rights. Thirdly, in order to avoid the difference between the first invention system and the first application system between the two countries, the valid filing date of the United States presumption invention date is corresponding to the Chinese application date, assuming that there is no other evidence to disprove the presumption invention date. Thus, the difference between the two countries' system of preventing the conflict of rights is obtained. Finally, in the light of the above-mentioned differences and in the light of the existing system of preventing conflicts of rights in our country, the specific measures and recommendations for the system of preventing conflict of rights are given from both the procedural and the substantive aspects of the review, It mainly improves the procedural provisions in terms of time limit and process by means of clarification and interpretation, and unifies them with the subsequent judicial procedures by upgrading the substantive provisions that conflict with the standards of review of applications and repeated authorizations, and supplemented by supporting measures. The above specific measures and suggestions will help to gradually improve the distinction between patent rights, reduce the size of the patent family, avoid excessive patent rights, and effectively prevent conflicts between exclusive rights, To some extent, to avoid the unfair extension of patent protection period and abuse of patent rights, to give play to the incentive role of the patent system, has a certain degree of practical operation and theoretical foresight.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.42;D971.2
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