利益平衡视野下的实用新型修改规则研究

Study on Amendment Rule of Utility Model from the Perspective of Interest Balance

我国实用新型修改规则存在着"主动修改基本闲置,被动修改流于形式,无效修改过度严格"的问题。修改规则本质上是基本原理的具体化。我国实用新型修改规则的基本原理在于防止不正当利益以及维护公众信赖利益,其倾向于社会公众利益的保护,却忽略了专利权人的利益,最终导致利益失衡。本文主张基于利益平衡理论重塑实用新型的修改规则,认为合理的修改规则应有助于而不是阻碍专利权人通过修改来获得与其技术贡献相匹配的专利权保护范围,最终达成专利权人与社会公众之间的利益平衡。

There are some problems in the amendment rule of utility model in china,such as ＂amendment by applicant on his own initiative being rarely made,amendment as required by the notification mainly regarding formality defects,and amendment in invalidation procedures being strictly limited ＂. The amendment rule is essentially the embodiment of basic principle. The basic principle of amendment rule of utility model in china is to prevent illegitimate interest and protect public reliance interest,which tends to protect public interest but ignore the interest of the patentee,leading to imbalance of interest in the end. The article holds that the present amendment rule should be reshaped according to the theory of interest balance and the reasonable amendment rule should help rather than hinder the patentee to gain the protection scope of patent right which matches with his technical contribution through amendment,reaching interest balance between the patentee and the public eventually.