我国专利侵权诉讼与专利无效审理模式问题研究
发布时间：2018-08-08 18:29
【摘要】：伴随着社会发展,科技不断进步,竞争的核心越来越体现在对高端技术的掌控上,因而对专利权的保护也越来越受到关注。专利侵权诉讼和专利无效是专利制度的重要内容,两者关系密切。但我国依据职权分开原则建立的专利制度,使得专利侵权诉讼的审理由人民法院负责,专利无效的审查由国家知识产权局专利复审委员会负责。这种职权分开的后果是专利权侵权诉讼程序常常因为等待专利无效的结果而一直被中止,造成专利权长期处于不稳定状态,同时也影响专利案件处理的公平和效率。我国目前的专利侵权诉讼与专利无效审理模式在我国专利纠纷越来越多,社会公众对纠纷处理的公平和效率的要求不断增强的情形下,正凸显其弊端。最大问题在于密切相关联的专利侵权诉讼与专利无效程序得不到协调解决,两个程序的衔接严重缺乏,影响专利案件的有效解决。 而在现在我国专利侵权诉讼与专利无效宣告的审理模式下,“循环诉讼”问题长期存在,这一直是我国专利无效程序中的难题。不但使得专利无效案件的审理长时间拖延,行政和司法资源都被耗费,却还是不能有效地解决问题,使得专利权不稳定,不但损害当事人权益还损害了社会公共利益。为了更好地解决当事人之间的争端,维护当事人的合法权益和社会公共利益,节约行政和司法资源的耗费,有效快速地解决专利无效案件中的“循环诉讼”问题是非常关键的。因此,如何完善我国专利侵权诉讼与专利无效审理模式就显得至关重要。 本文从“循环诉讼”导致专利侵权诉讼久拖不决切入主题,先从我国的职能分开的专利制度分析专利无效与中止诉讼,再阐述“循环诉讼”如何产生,并通过案列看“循环诉讼”会造成怎样的后果。 文章的第二部分分析了要解决我国现阶段专利侵权诉讼与专利无效宣告审理模式的问题,必须先厘清专利权本身的性质以及确认专利权有效性纠纷的性质。专利权具有特殊的属性,其本质属性是私权,但是又带有一定得公权性质。学界对确认专利权有效性纠纷的性质也有不同的学说,包括民事纠纷说、行政纠纷说和准司法模式说。 文章的第三部分是主要国家和地区的专利侵权诉讼与专利无效宣告审理模式。该部分主要介绍了美国、德国、日本、法国的专利侵权与专利无效审理制度以及发展趋势,重点论述了美国联邦巡回上诉法院、德国联邦专利法院、日本知识产权高等法院、法国完全依据民事诉讼程序对无效案件进行审理的模式,为我国审理模式的完善提供借鉴。 文章的第四部分是对我国审理模式完善的探讨,分析了我国学者提出的相关改革方案,比如建立专利上诉法院、建立专门的专利法院等,并对我国现阶段的合理模式提出建议。
[Abstract]:With the development of society and the progress of science and technology, the core of competition is more and more in the control of high-end technology, so the protection of patent rights has been paid more and more attention. Patent infringement litigation and patent invalidation are important contents of patent system, and they are closely related. However, the patent system established according to the principle of separation of functions and powers makes the people's court responsible for the trial of patent infringement litigation and the patent review board of the State intellectual property Office for the examination of patent invalidity. The consequence of this separation of powers is that patent infringement proceedings are often suspended because of waiting for the result of patent invalidation, which causes the patent rights to be unstable for a long time, and also affects the fairness and efficiency of handling patent cases. The current patent infringement litigation and patent invalidation trial mode in our country is more and more patent disputes, the social public demand for fairness and efficiency of dispute processing is increasing, which is highlighting its drawbacks. The biggest problem lies in the fact that the closely related patent infringement litigation and the patent invalid procedure can not be solved harmoniously, and the connection between the two procedures is seriously lacking, which affects the effective solution of the patent case. However, under the trial mode of patent infringement litigation and patent invalidation declaration in our country, the problem of "circular litigation" has existed for a long time, which has always been a difficult problem in the patent invalidation procedure of our country. It not only makes the patent invalid cases long time delay, administrative and judicial resources are consumed, but also can not effectively solve the problem, make patent unstable, not only damage the rights and interests of the parties but also the public interests. In order to better solve the dispute between the parties, safeguard the legitimate rights and interests of the parties and the public interests of the parties, save the cost of administrative and judicial resources, and effectively and quickly solve the problem of "circular litigation" in patent invalidation cases, it is very crucial. Therefore, how to perfect our patent infringement litigation and patent invalid trial mode is very important. In this paper, the author analyzes the patent invalidation and suspension litigation from the patent system of function separation in our country, and then expounds how to produce the "circular litigation", which leads to the patent infringement litigation caused by "circular litigation" for a long time. And through the case list to see the "circular litigation" what kind of consequences. The second part of the article analyzes the problem of patent infringement litigation and patent invalidation trial mode in our country at present, we must clarify the nature of patent right itself and confirm the nature of patent validity dispute. Patent right has special attribute, its essence attribute is private right, but also has certain public right nature. Scholars also have different theories on the nature of patent validity dispute, including civil dispute theory, administrative dispute theory and quasi-judicial model theory. The third part is the trial mode of patent infringement litigation and patent invalidation in main countries and regions. This part mainly introduces the patent infringement and patent invalidation trial system and its development trend in America, Germany, Japan and France, and mainly discusses the United States Federal Circuit Court of Appeals, the German Federal Patent Court, the Japanese intellectual property High Court. France completely according to the civil procedure to the invalid cases trial mode, for our country trial model to provide reference. The fourth part of the article discusses the perfection of the trial mode of our country, analyzes the relevant reform schemes put forward by Chinese scholars, such as the establishment of patent appeal court and the establishment of special patent court, and puts forward some suggestions on the reasonable mode of our country at present stage.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42;D925
本文编号：2172649
[Abstract]:With the development of society and the progress of science and technology, the core of competition is more and more in the control of high-end technology, so the protection of patent rights has been paid more and more attention. Patent infringement litigation and patent invalidation are important contents of patent system, and they are closely related. However, the patent system established according to the principle of separation of functions and powers makes the people's court responsible for the trial of patent infringement litigation and the patent review board of the State intellectual property Office for the examination of patent invalidity. The consequence of this separation of powers is that patent infringement proceedings are often suspended because of waiting for the result of patent invalidation, which causes the patent rights to be unstable for a long time, and also affects the fairness and efficiency of handling patent cases. The current patent infringement litigation and patent invalidation trial mode in our country is more and more patent disputes, the social public demand for fairness and efficiency of dispute processing is increasing, which is highlighting its drawbacks. The biggest problem lies in the fact that the closely related patent infringement litigation and the patent invalid procedure can not be solved harmoniously, and the connection between the two procedures is seriously lacking, which affects the effective solution of the patent case. However, under the trial mode of patent infringement litigation and patent invalidation declaration in our country, the problem of "circular litigation" has existed for a long time, which has always been a difficult problem in the patent invalidation procedure of our country. It not only makes the patent invalid cases long time delay, administrative and judicial resources are consumed, but also can not effectively solve the problem, make patent unstable, not only damage the rights and interests of the parties but also the public interests. In order to better solve the dispute between the parties, safeguard the legitimate rights and interests of the parties and the public interests of the parties, save the cost of administrative and judicial resources, and effectively and quickly solve the problem of "circular litigation" in patent invalidation cases, it is very crucial. Therefore, how to perfect our patent infringement litigation and patent invalid trial mode is very important. In this paper, the author analyzes the patent invalidation and suspension litigation from the patent system of function separation in our country, and then expounds how to produce the "circular litigation", which leads to the patent infringement litigation caused by "circular litigation" for a long time. And through the case list to see the "circular litigation" what kind of consequences. The second part of the article analyzes the problem of patent infringement litigation and patent invalidation trial mode in our country at present, we must clarify the nature of patent right itself and confirm the nature of patent validity dispute. Patent right has special attribute, its essence attribute is private right, but also has certain public right nature. Scholars also have different theories on the nature of patent validity dispute, including civil dispute theory, administrative dispute theory and quasi-judicial model theory. The third part is the trial mode of patent infringement litigation and patent invalidation in main countries and regions. This part mainly introduces the patent infringement and patent invalidation trial system and its development trend in America, Germany, Japan and France, and mainly discusses the United States Federal Circuit Court of Appeals, the German Federal Patent Court, the Japanese intellectual property High Court. France completely according to the civil procedure to the invalid cases trial mode, for our country trial model to provide reference. The fourth part of the article discusses the perfection of the trial mode of our country, analyzes the relevant reform schemes put forward by Chinese scholars, such as the establishment of patent appeal court and the establishment of special patent court, and puts forward some suggestions on the reasonable mode of our country at present stage.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42;D925
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