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As intangible property, patent right can be the object of property preservation in litigation. Article 87 of the Implementing Regulations of the Patent Law stipulates: If the people's court decides to take preservation measures for the patent application right or patent right in the trial of a civil case, the patent administration department under the State Council shall, upon receipt of the ruling indicating the application number or patent number and the The relevant procedures for suspending the preserved patent application right or patent right shall be suspended on the date of the notice of assistance in enforcement. At the expiration of the preservation period, if the people's court has not ruled to continue to take preservation measures, the patent administration department under the State Council shall resume the relevant procedures on its own.
Section 7.2 of Chapter 7 of Part V of the Guidelines for Patent Examination clearly stipulates that the patent invalidation procedure belongs to the above mentioned circumstances that should be suspended. The purpose of this paper is to discuss the suspension of invalidation procedure of patent right due to property preservation measures, whether the suspension includes the request for invalidation put forward by a third party unrelated to preservation behavior, and what should the applicant for invalidation do under this background.
The purpose of establishing a property preservation system is to prevent the patentee from maliciously transferring, selling, squandering, concealing, or damaging his property, ensuring that the effective judgment made by the court in the future can be smoothly executed, truly protecting the legitimate rights and interests of the winning party, and solving the problem of "difficulty in execution". problem is of practical significance. Specific to the property preservation of patent right, it is mainly to avoid the patentee's malicious behavior of impairing property, which leads to the abandonment, termination, invalidity and other results of patent right, which leads to the unenforceable situation of patent right after the court makes the effective judgment and enters the execution stage, and damages the legitimate rights and interests of the winning party.
The invalidation request made by a third party unrelated to the property preservation act is a normal risk of property value changes, and does not belong to the malicious transfer, sale, squandering, concealment or damage of the property by the patentee. Because a patent is a special right and property, after the patent right is granted, anyone has the right to request for invalidation of the patent. The purpose is to make the patent that should not be granted the patent right invalid from the beginning, which belongs to the remedy procedure for the authorization defect. That is to say, it is legal to request invalidation of a patent itself, which is a common sense risk that exists after the patent is authorized. This risk is incidental from the date of authorization, and does not exist because of the request of invalidation claimant.
In order to ensure the realization of substantive justice, property preservation requires property payment and property with certain value. However, when a patent is requested for invalidation, its value may be legally and reasonably lost. Once the patent is declared invalid, its value will be destroyed, and the patent will no longer have the practical significance of being preserved. Even after being preserved and enforced, after the patent is attributed to others, the invalidation of the patent may result in impairment of the rights and interests of others, and does not actually protect the legitimate rights and interests of the parties. Therefore, from this point of view, the invalidation request made by a third party who has nothing to do with property preservation in the patent invalidation procedure should not be affected by the preservation.
In addition, Article 6 of the Civil Code of the People’s Republic of China stipulates that civil subjects engaged in civil activities should follow the principle of fairness and reasonably determine the rights and obligations of all parties. However, suspending the invalidation procedure after the property preservation of the patent is depriving the claimant of the right to request invalidation of the patent right according to the normal procedure, which violates the principle of fairness in civil law. In practice, the initiation of invalidation procedure is mostly based on the fact that the claimant for invalidation has a dispute with the patentee in another civil relationship. For example, the patentee sues the invalidation petitioner for infringing its patent rights, and the patentee uses its patent request to conduct administrative investigations against the invalidation petitioner's products, etc. In this case, the request for invalidation made by the claimant for invalidation belongs to a usual counter-attack method as the accused infringer in the infringement legal relationship, and belongs to the legitimate rights and interests protected by law that the claimant for invalidation should enjoy. However, after the patent procedure is suspended, the patentee still enjoys the right to use his patent to defend his rights, but the invalid procedure is ruled to be suspended, which makes the rights enjoyed by the patentee and the accused infringer unequal, obviously unfair.
To sum up, the author thinks that it is not in line with the legislative intent of establishing property preservation system to include the request for invalidation put forward by a third party unrelated to preservation behavior into the scope of suspension.
The property preservation system should have a mechanism to protect the rights and interests of the parties and achieve a balance between the rights and interests of all parties.
Although the Patent Law stipulates that anyone has the right to file a request for invalidation, the suspension of the invalidation procedure caused by the adoption of property preservation measures does not affect the rights and interests of all invalidation requesters to a certain extent. When the claimant for invalidation is a third party unrelated to property preservation, the suspension will have little impact on his rights and interests. However, when the claimant of invalidation belongs to the accused infringer in another legal relationship, the influence of the suspension of invalidation procedure on the claimant of invalidation cannot be ignored. Therefore, the author thinks that the infringer in the legal relationship of patent infringement should be given certain remedies to ensure that he can exercise his legitimate rights and interests smoothly. The subject enjoying the right of relief should be the party of the legal relationship of patent infringement disputes, and the party has not participated in the legal relationship of property preservation (hereinafter referred to as the subject of relief right).
In judicial practice, the CNIPA and the court belong to two different trial institutions. When taking property preservation measures for a patent, the court should first make a civil ruling on property preservation, and then issue a notice of assistance in enforcement to the State Intellectual Property Office. The State Intellectual Property Office shall carry out the property preservation of the patent, and make the processing of suspending the invalidation procedure. It can be seen that the court's ruling on property preservation itself will not affect the legitimate rights and interests of the person with the right to relief, because the person with the right to relief should not be a party involved in the legal relationship of property preservation; and, if the person with the right to relief is allowed to directly challenge the ruling, It will directly affect the legitimate rights and interests of the preservation applicant, be unfair to the preservation applicant, and make the legal relationship more complicated, which is not conducive to resolving disputes. Therefore, the right holder can only be given certain relief procedures from the procedure of property preservation implemented by the CNIPA. The author believes that the holder of the relief right should be given the right to object to the decision made by the CNIPA to suspend the invalidation procedure. When the holder of the relief right can prove that he is a party to the legal relationship of the patent infringement dispute, he should decide to restore the holder of the relief right. Hearing of the invalidation request filed. In order to prevent the remedy right holder and the patent holder from maliciously colluding to file a request for invalidation, the decision on resumption of trial shall be sent to the court. The applicant for preservation; if the preservation is made by the court itself, the decision to resume the trial shall be sent to the interested party; if the applicant for preservation or the interested party has any objection, the right of relief and the patentee shall be provided. Evidence of malicious collusion, otherwise it will not affect the resumption of the trial.
In addition, in the legal relationship of patent infringement disputes, whether the patent is valid is one of the main focuses of the dispute between the plaintiff and the defendant. The defendant often uses the request to declare the patent in question invalid as a means of litigation to make the infringement lawsuit enter a state of suspension for a long time, that is, when the patent right is a utility model or design patent, if the accused infringer is based on its claims during the defense period. Where a patent infringement dispute is requested to suspend the trial due to a request for invalidation, the court shall rule to suspend the trial. The suspension of the trial may be made at a discretion based on the consideration of doubts about the stability of the patent right and the possibility of the patent right being invalidated. If the patent involved is finally determined to be invalid, the trial of patent infringement disputes will be of no practical significance. That is, when the trial of the litigation case needs to be based on the trial of the patent confirmation case, the trial should be suspended to wait for the result of the invalidation trial, and then make appropriate judges. However, when a patent is taken property preservation measures and a request for invalidation is filed, the patent right may face two adverse consequences: First, the ownership of the patent right may be enforced due to preservation, resulting in the change of the ownership of the patent right, then, in the corresponding patent infringement dispute, the right holder will no longer have the subject qualification as a qualified party; Second, the patent right may be finally determined to be invalid through the invalidation request procedure. Among the above two possible adverse consequences, the impact on whether the patent infringement dispute should be suspended must be greater than the impact brought by the separate invalidation procedure. Therefore, the author believes that when a patent right is subject to both property preservation measures and a request for invalidation, it should at least be adjudicated to suspend the trial of the patent infringement dispute, and it should no longer be considered whether the patent is an invention patent or a utility model patent.
To sum up, the author believes that when a patent is subject to both property preservation measures and is in the process of invalidation, the rights of the invalidation petitioner not related to property preservation should be fully protected, and the invalidation petitioner should be allowed to declare invalidation. The procedure resumes trial, and the patent infringement dispute involved by the invalidation petitioner shall be suspended.