论专利侵权纠纷行政处理的弊端:历史的选择与再选择

On the Administrative Resolution of Patent Infringement Disputes: the Historical Choice Need to Chang

专利侵权纠纷在我国有行政处理和司法诉讼两条途径,此即中国特色的"双轨制",但其中的行政处理制度备受争议。与司法诉讼相比,行政处理通常被认为具有成本低、效率高、执法专业、可与司法诉讼形成互补等优点,并且在外国也有此类制度。然而进一步的分析揭示,行政处理的这些优势未必真正存在,英国等国的专利纠纷解决机制也与我国的行政处理不同。我国的专利侵权纠纷行政处理制度虽然曾做出重要贡献,但在当前及今后并无足够的合理性和必要性,建议取消,同时建议加强专利管理部门的专利行政管理和专利行政服务职能。专利法第四次修订应当再次做出历史选择,从而使我国的专利制度建设更为理性。

In addition to judicial litigation, China also uses administrative way to resolve patent infringement disputes, which is called the ＂double-track protection system＂. However, the administrative enforcement of patent infringement disputes has always been highly debated. It is generally held that compared with judicial litigation, administrative enforcement can be more efficient, cost-saving and professional, and particularly, it can complement the deficiencies of judicial litigation. China is not alone in adopting the administrative enforcement. However, further exploration finds that the above-mentioned advantages of the administrative enforcement may not always be true. Besides, the patent disputes settlement system in other countries, e.g. UK, is different from what is being practiced in China. Although the administrative enforcement mechanism has made its contribution in solving patent irfflingement disputes in the early days, it may not have sound rationality and necessity any more for now and in the future. It is therefore advised, for the current 4th Revision of the Chinese Patent Law, the administrative enforcement of patent infiingement disputes be removed, meanwhile efforts should be made to enhance the patent management and service capabilities of China＇s patent administration organs. Administrative enforcement of patent infringement disputes was a historical choice, which should be changed during the current patent law revision process, so as to construct a more rational patent system in China.