偏离与回位:专利纠纷行政调解制度重构

Deviation and Rectification: Reconstruction of the Administrative Mediation System of Patent Dispute

专利纠纷行政调解制度在我国《专利法》第二次修改时已有明确规定,其具有专业性、权威性和效益型的功能优势,与专利纠纷实质解决的理念是相契合的。然而,专利纠纷行政调解性质定位偏差、调解主体角色错位、调解程序规则缺失、调解协议效力不足等现实问题,严重制约了该项制度作用的发挥。基于此,需要把握行政调解的真实意蕴,立足当事人解决专利纠纷的现实需求,将服务行政理念贯穿于调解的全过程,设置专门的调解机构,规范调解的具体程序,强化调解协议的法律效力,完善相关的配套机制。

The administrative mediation system of patent dispute has clearly defined in the second amendment of the ＂Patent Law＂. It has several functional advantages include professional, authoritative and efficient, which is correspond with the concept that patent dispute should be solved substantially. However, there are several practical problems in administrative mediation of patent disputes such as deviation of the nature location, dislocation of the role of mediation subject, deficiency of the mediation procedural rules, inefficiency of the mediation agreement, which seriously constraint the function of the system. Therefore, it is necessary to grasp the true implication of administrative mediation, let the concept of administrative services through the whole process of mediation based on the practical needs in resolving patent disputes among the parties, establish special mediation agencies, standardize specific procedures of mediation, strengthen the legal effect of mediation agreement, and improve the relevant supporting mechanism.