Research on the Creation of Necessary Exceptions for Patent Invalidation in China Under the Dual-Track System
[Purposes]Under China's current patent system,the validity status and infringement of patent rights are judged by the patent administration department and the court respectively.The court cannot make a substantive judgment on the validity of the patent right in the patent infringement litigation,so that the interests of the parties are harmed,and the system should be improved.[Methods]By invoking Article 20.1 of the Patent Law and concretizing the constituent elements of this general provision,the par-ties can directly raise the defense of patent abuse in patent infringement litigation,thereby creating a necessary exception to the patent invalidation system.[Findings]On the premise of respecting the cur-rent patent validity examination system,certain breakthroughs should be made in the dual-track patent system by creating necessary exceptions,so as to achieve the purpose of promoting scientific and techno-logical innovation in the patent system.[Conclusions]The application of the abuse of rights defense in patent infringement litigation should be based on the existence of the patent right and the compliance with the statutory invalidation grounds,objectively exceeding the boundary of the patent right,and the in-ability to apply the prior art defense.
万方数据
维普
