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A Study on Administrative Litigation of Patent Ownership Determination

Author: SunQiong
Tutor: WangYueMing
School: East China University of Political Science
Course: Constitutional and Administrative Law
Keywords: Patent is indeed the right Properties of the non - civil Administrative with Civil
CLC: D925.3;D922.17
Type: Master's thesis
Year: 2010
Downloads: 124
Quote: 0
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Abstract


\Such a situation has brought a lot of problems, such as the Patent Reexamination Board overwhelmed, struggling back and forth in the review work and court proceedings, and if in the proceedings, the original \Apply for one of the two parties. According to the present law, the implementation of the patent is indeed the right to administrative and judicial dual protection, and the front of administrative remedies. This arrangement will bring some of the problems in the practical operation. For example, after a review of the decision of the court revoked the Patent Reexamination Board, the Patent Reexamination Board to make exactly the same decision, resulting in circulation; Another example is the patent is indeed the right administrative proceedings and administrative proceedings and civil actions related to cross. How to deal with this cross the academic world and there is no unified understanding. In practice, July 1, 2009 has just officially implemented the Supreme People's Court heard about the license confirmation class of patents, trademarks and other intellectual property rights administrative cases the provisions of the division of labor \This general division of the functions of the courts not clearly defined. Defendants by the Patent Reexamination Board, in the end in accordance with the civil proceedings or administrative proceedings to hear and not clearly defined, causing the academic controversy. How to solve the problem in the patent is indeed the right action, and that is the focus of this paper. To solve this problem, the author first analyzes the patent is indeed the right administrative protection and administrative proceedings protection reasonable, especially for the patent is indeed the right to do a qualitative analysis, the non-civil property, rather than civil litigation and administrative litigation protection . At the same time the author of his own proposal, that our patent administrative Incidental Civil Action cross-cutting issues to resolve the patent civil and administrative litigation and administrative proceedings involving patent technical part of the problem be resolved by improving the patent jury system. In addition, by comparing the advantages of patent litigation in the United States, Japan, to give the court the right to decide to change the patent reexamination. So that you can solve the problems of the patent is indeed the right administrative protection and administrative litigation between the protection of circulation litigation. The paper is divided into four parts, the first provides an overview of the patent is indeed the right relief system, do overall description of the meaning of the patent is indeed the right, patent administrative litigation; Second, the theoretical analysis of the existing patent is indeed the right relief system, from patent the requirements of the special attributes of executive power fit, the patent administrative protection of comparative advantage and the International Covenant on three aspects reveal the administrative protection of patent is indeed the right, on qualitative analysis of the patent is indeed the right of non-civil property should be classified in the category of administrative proceedings; third part through the interpretation of the status quo of the patent is indeed the right of the patent is indeed the right legal norms provisions reflect the patent is indeed the right system to build on the vacancy and the recommendations of the experts and scholars; Finally, to improve the patent is indeed the right path to the administrative proceedings, is to establish administrative Incidental Civil Action to be addressed. In the specific operation, the first analysis of the current practice of three main practices, and proposed the idea to set the perfect professional patent jury system. I hope in order to solve the problem of convergence of the decision of the Patent Reexamination patent administrative proceedings. Give the court decided to change the right to patent reexamination, to solve loop litigation issues.

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CLC: > Political, legal > Legal > Chinese law > Administrative law > Science and Technology Management Act
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