专利侵权民事程序中专利权效力判断问题研究
发布时间：2018-11-28 08:32
【摘要】：当被诉侵权人在专利侵权民事程序中提出专利权无效的主张时,允许法院对专利权效力进行审查,在确定了专利权效力的基础上再对侵权与否做出判决,可避免因专利权无效程序过于复杂冗长而延迟专利侵权民事程序判决的情形,也可借此从立法论上赋予法院在专利侵权民事程序中判断专利权效力的权利。但是,在允许法院在专利侵权民事程序中对专利权效力进行审查的同时,一定要坚持专利权效力判断结果的相对性,其判断结果不应具有对世性的效力。同时,应明确现有技术抗辩在专利侵权民事程序中的独立性。本文建议可借鉴域外经验,对我国目前专利法体系来说直接效仿美国使法院主导专利权效力判定是不切实际的,但可借鉴日本的做法,在专利侵权民事程序中引入专利权“当然无效抗辩原则”,使法院在个案中对专利权效力进行判定这一行为合法化。而且需明确专利权“当然无效抗辩”的提出不需要以向专利复审委员会请求专利权无效宣告为前提,以及对于专利法中规定的无效理由是都可以提出专利权“当然无效抗辩”的,同时通过新增专利复审委员会与法院之间的“信息通报机制”,在专利权效力判定上引入“争点排除原则”以及全面推广知识产权专门法院模式等配套改革措施来有效避免因专利权“当然无效抗辩”的引入而可能带来的专利权效力判定上的“民行冲突”、专利权效力认定结果与民事侵权程序裁判结果上的“地域性冲突”、专利权无效抗辩滥用等风险。目前,我国还是采用专利侵权民事程序和专利无效程序二元分立的体制,但是法院为了提升诉讼效率、降低当事人诉讼成本以及避免司法资源的浪费,尝试在专利侵权民事诉讼中间接审查专利权的效力,这一做法虽然能缓解目前我国专利侵权民事纠纷中专利权效力判断所带来的问题,但是我国在立法论上还没有赋予法院认定专利权效力的权利,也没有完善配套机制,以至于可能会带来更多的风险,如:专利权效力判定上的“民行冲突”、专利权效力认定结果与民事侵权程序裁判结果上的“地域性冲突”以及专利权无效抗辩滥用等问题,而且也会造成对我国现有完整专利法体系的破坏。所以对于我国目前在专利侵权民事程序中专利权效力判断上所处的困境,在法院还不能完全承担专利权效力判定的基础上,在专利侵权民事程序中引入专利权“当然无效抗辩原则”是解决此困境的必要措施。
[Abstract]:When the sued infringer claims the invalidity of the patent right in the civil proceedings for patent infringement, the court is allowed to examine the effectiveness of the patent right, and then make a judgment on whether the patent right is infringed or not on the basis of determining the effectiveness of the patent right. It can avoid the delay of the judgment of patent infringement because the invalid procedure of patent right is too complicated and lengthy, and it can also give the court the right to judge the validity of patent right in the civil procedure of patent infringement from the legislative point of view. However, while allowing the court to examine the effectiveness of the patent right in the patent infringement civil procedure, it is necessary to insist on the relativity of the result of judging the effectiveness of the patent right, which should not have a universal effect. At the same time, we should clarify the independence of the existing technology defense in the patent infringement civil procedure. This paper suggests that it is impractical for China's current patent law system to directly emulate the United States to judge the effectiveness of the court leading the patent right, but it can draw lessons from the practice of Japan. In the civil procedure of patent infringement, the principle of patent right "is introduced into the civil procedure of patent infringement, which legalizes the court's decision on the validity of patent right in a case." Moreover, it is necessary to make it clear that the proposition of the patent right "of course invalidity" does not need to be based on the request to the Patent Reexamination Board for the invalidation of the patent right. As well as the grounds for invalidity stipulated in the Patent Law, they can all put forward the defense of "ipso facto invalidity" of the patent right, and at the same time, through the "information notification mechanism" between the new patent review board and the court, This paper introduces the principle of "contention exclusion" in the determination of patent validity and other supporting reform measures such as comprehensively popularizing the model of specialized court of intellectual property rights to effectively avoid the patent that may be brought about by the introduction of patent right "of course invalid defense". The "conflict of civil conduct" in the determination of the validity of the right, There are some risks such as the regional conflict between the result of patent validity determination and the judgment result of civil tort procedure, the abuse of patent invalidation defense and so on. At present, our country still adopts the dual separation system of patent infringement civil procedure and patent invalid procedure, but the court in order to improve the litigation efficiency, reduce the litigant litigation cost and avoid the waste of judicial resources. This paper attempts to indirectly examine the effectiveness of patent rights in civil litigation of patent infringement, although this practice can alleviate the problems caused by judging the effectiveness of patent rights in civil disputes of patent infringement in our country. However, China has not given the court the right to determine the validity of the patent right in the legislative theory, nor has it perfected the supporting mechanism, so that it may bring more risks, such as the conflict of civil conduct in the determination of the validity of the patent right. The "regional conflict" between the result of patent validity determination and the adjudication result of civil tort procedure and the abuse of patent invalidation defense will also cause damage to the existing patent law system of our country. Therefore, for the plight of our country in judging the effectiveness of patent rights in patent infringement civil proceedings at present, on the basis of the fact that the court has not yet been able to fully assume the judgment of the effectiveness of patent rights, It is necessary to solve this dilemma by introducing patent right "principle of invalid defense" in the civil procedure of patent infringement.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
本文编号：2362358
[Abstract]:When the sued infringer claims the invalidity of the patent right in the civil proceedings for patent infringement, the court is allowed to examine the effectiveness of the patent right, and then make a judgment on whether the patent right is infringed or not on the basis of determining the effectiveness of the patent right. It can avoid the delay of the judgment of patent infringement because the invalid procedure of patent right is too complicated and lengthy, and it can also give the court the right to judge the validity of patent right in the civil procedure of patent infringement from the legislative point of view. However, while allowing the court to examine the effectiveness of the patent right in the patent infringement civil procedure, it is necessary to insist on the relativity of the result of judging the effectiveness of the patent right, which should not have a universal effect. At the same time, we should clarify the independence of the existing technology defense in the patent infringement civil procedure. This paper suggests that it is impractical for China's current patent law system to directly emulate the United States to judge the effectiveness of the court leading the patent right, but it can draw lessons from the practice of Japan. In the civil procedure of patent infringement, the principle of patent right "is introduced into the civil procedure of patent infringement, which legalizes the court's decision on the validity of patent right in a case." Moreover, it is necessary to make it clear that the proposition of the patent right "of course invalidity" does not need to be based on the request to the Patent Reexamination Board for the invalidation of the patent right. As well as the grounds for invalidity stipulated in the Patent Law, they can all put forward the defense of "ipso facto invalidity" of the patent right, and at the same time, through the "information notification mechanism" between the new patent review board and the court, This paper introduces the principle of "contention exclusion" in the determination of patent validity and other supporting reform measures such as comprehensively popularizing the model of specialized court of intellectual property rights to effectively avoid the patent that may be brought about by the introduction of patent right "of course invalid defense". The "conflict of civil conduct" in the determination of the validity of the right, There are some risks such as the regional conflict between the result of patent validity determination and the judgment result of civil tort procedure, the abuse of patent invalidation defense and so on. At present, our country still adopts the dual separation system of patent infringement civil procedure and patent invalid procedure, but the court in order to improve the litigation efficiency, reduce the litigant litigation cost and avoid the waste of judicial resources. This paper attempts to indirectly examine the effectiveness of patent rights in civil litigation of patent infringement, although this practice can alleviate the problems caused by judging the effectiveness of patent rights in civil disputes of patent infringement in our country. However, China has not given the court the right to determine the validity of the patent right in the legislative theory, nor has it perfected the supporting mechanism, so that it may bring more risks, such as the conflict of civil conduct in the determination of the validity of the patent right. The "regional conflict" between the result of patent validity determination and the adjudication result of civil tort procedure and the abuse of patent invalidation defense will also cause damage to the existing patent law system of our country. Therefore, for the plight of our country in judging the effectiveness of patent rights in patent infringement civil proceedings at present, on the basis of the fact that the court has not yet been able to fully assume the judgment of the effectiveness of patent rights, It is necessary to solve this dilemma by introducing patent right "principle of invalid defense" in the civil procedure of patent infringement.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
【参考文献】
相关期刊论文 前4条
1 纪格非;;“争点”法律效力的西方样本与中国路径[J];中国法学;2013年03期
2 李扬;;日本专利权当然无效抗辩原则及其启示[J];法律科学(西北政法大学学报);2012年01期
3 惷中林;;知识产权授权确权程序的改革与完善[J];人民司法;2010年19期
4 王天华;;行政行为公定力概念的源流——兼议我国公定力理论的发展进路[J];当代法学;2010年03期
，本文编号：2362358
本文链接：https://www.wllwen.com/shoufeilunwen/shuoshibiyelunwen/2362358.html
