How to strengthen patent administrative law enforc

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How to strengthen patent administrative law enforcement "two ways, coordinated operation" of intellectual property justice and administrative law enforcement is a major feature of China's intellectual property protection system. The practice over the past 20 years has proved that the system of coexistence of administrative law enforcement and judicial channels is suitable for China's specific national conditions, and has played an important role in truly safeguarding the legitimate interests of intellectual property rights holders and combating and curbing intellectual property infringement. The author believes that patent administrative law enforcement is not only needed by the current patent protection system in China, but also should be further strengthened. On the one hand, because China's market economic order is not perfect, and a fair and orderly market competition environment has not yet been formed, malicious infringement of others' patent rights is common. On the other hand, although the TRIPS Agreement recognizes that intellectual property is a private right, it does not rule out the possibility of administrative protection measures for intellectual property

compared with patent judicial protection, patent administrative law enforcement has the advantages of simple law enforcement procedures, fast processing and high efficiency. However, at present, China's patent administrative law enforcement can actively investigate and punish the acts of counterfeiting and passing off patents, but it can not effectively protect the infringement. The author believes that the main problems are:

1. Patent administrative law enforcement lacks effective means to stop infringement. According to Article 57 of the patent law, the plastic mold and plastic machinery industry mainly relies on the basic advantages of Chongqing's equipment manufacturing industry. If the local patent administration organ determines that the infringement is established, it can only order the infringer to stop the infringement, and there is no other law enforcement means such as temporary detention, seizure, confiscation of infringing products. Therefore, "ordering the infringer to stop the infringement" requires the active cooperation of the infringer to a large extent, and often can not effectively stop the infringement. The malicious infringement and group infringement of those small enterprises and workshops will usually transfer production equipment and infringing products, which will create more obstacles to the follow-up relief. Compared with the author's division of ABS into two generations until 2016, patent administrative law enforcement lacks strong law enforcement means such as confiscation and destruction

2. The standard of infringement judgment is not clear. As for the standards for determining infringement, Articles 11, 56 and 57 of the patent law stipulate that although the judgment principles such as "equivalent infringement" are stipulated in the measures for administrative enforcement of patents, they are only principled and need to be further refined. For example, the specific meaning of terms such as "production and operation purpose" and "offer for sale" has not been clarified in the measures for patent administrative law enforcement. Therefore, at present, the local patent administration agencies have the problem of inconsistent judgment standards in terms of patent infringement judgment standards

3. The patent administration organ lacks the function of actively investigating and dealing with serious patent infringement. Serious infringement includes more group infringement and repeated infringement at present. Obligees or interested parties are often helpless about this. If they file a lawsuit to the court one by one, they need to go to various places to obtain evidence. The cost of safeguarding rights is too high, and it is time-consuming and labor-consuming. For most enterprises and obligees, they simply do not have this ability. Such cases are more likely to occur when a good market economic order and social integrity system have not been fully established. In the face of this situation, it is necessary to increase the functions of local patent administration organs to actively investigate and deal with, maintain and improve the core competitiveness of enterprises, protect the normal market order, and safeguard the legitimate rights and interests of patentees

to sum up, it can be seen that China's patent administrative law enforcement cannot fully meet the needs of the current market environment in China, and cannot provide effective protection for patent rights, which will not only affect the market competition order, but also restrict the role of the patent system. Therefore, it is necessary to further improve the patent administrative law enforcement mechanism

based on the above analysis, the author puts forward the following suggestions for the reform of China's patent administrative law enforcement mechanism:

first, give local patent administration authorities the means to confiscate and destroy infringing products

second, clarify the basis for judging patent infringement and refine the standards for judging infringement, which is also conducive to strengthening the coordination of law enforcement among regions, unifying the standards for handling cases, and avoiding local protectionism

third, local patent administration organs are endowed with the function of actively investigating and dealing with group infringement and repeated infringement. Obviously, this proposal can only be formulated more reasonably on the basis of the improvement of the second proposal. At present, the established national patent administrative law enforcement cooperation mechanism procedure has achieved good results. For example, Sichuan Yibin siliya group company's "one ingot of two silk" patent has obtained 7.66 million yuan of infringement compensation and patent license implementation fee through this procedure. Therefore, this experience can be used for reference. If we add effective law enforcement means, we can greatly reduce the cost of protecting the rights of the patentee

the above suggestions should be considered as a whole. At the same time, it should also be noted that in order to ensure the fairness of law enforcement, corresponding restriction mechanisms should be considered. For the patent rights of utility models and designs that have not undergone substantive examination, the law enforcement authorities shall make an appropriate assessment of the stability of their patent rights, such as requiring the provision of utility model search reports, in order to prevent the patentee from abusing his rights

the patent system is the product of the market economy, but at this stage, when the market order is not perfect, we should still strengthen the administrative law enforcement of patents, give full play to the initiative and advantages of the administrative law enforcement departments of patents, further clarify and ensure the measures and means of law enforcement with laws, provide more effective protection for patentees, and give full play to the role of the patent system in stimulating innovation

(the author is an examiner of the utility model examination department of the Patent Office of the State Intellectual Property Office) (end)

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