专利行政调解协议的效力及其固化

Effectiveness of Administrative Mediation Agreements and Its Reinforcement

行政调解作为一种具有专业、权威、高效等优势的纠纷解决机制,理应受到专利纠纷当事方的青睐,但由于现行法律框架下的专利行政调解协议效力不明,阻碍了该制度内在优势的发挥,导致纠纷当事人选择行政调解的积极性普遍不高。为应对该制度漏洞,实践中创设了司法确认、委托调解、司法置换等专利行政调解协议效力固化模式,一定程度上弥补了立法的不足。然而由于统一立法缺失、司法审查规则模糊等制度缺陷,这些模式在实践中仍然存在运行的障碍。在专利法新一轮修订过程中,有必要对专利行政调解协议效力及其固化规则进行针对性的完善。

As a professional, authoritative and efficient dispute resolution mechanism, administrative mediation should have been favored by the patent dispute parties. However, due to the uncertainty of administrative mediation agreement＇s effectiveness in current legal framework, the advantage of the mechanism can＇t be brought into full play, whereby the dispute parties are reluctant to choose the administrative mediation. In response to this institutional loophole, several measures to reinforce the effectiveness of administrative mediation agreement, such as judicial confi rmation, delegation-conciliation and judicial replacement, have been employed to make up the defi ciencies in legislation. In reality, these mechanisms are not functioning well due to the lacking of unifi ed legislation, and the ambiguous judicial review rules. In current revision of the Patent Law, it is necessary to improve and reinforce the effectiveness of the patent administrative mediation agreement.