论新颖性宽限期制度效力缺陷及其克服

The Effectiveness Defect of Novelty Grace Period System and the Ways to Overcome It

为解决快速公开科研成果的需要与专利新颖性原则的矛盾,新颖性宽限期制度应运而生,并被创新型国家所广泛确立。作为产权私有化背景下鼓励传播创新的制度体现,其法律效力强弱影响着宽限期制度乃至整个知识产权制度所倡导的价值目标能否良好实现。但该制度的效力本身存在缺陷,即赋予宽限期制度在法定期间内保持新颖性的法律效力并不足以使其新颖性不受损害。为此,借鉴美国临时专利申请制度在宽限期制度内引入专利临时申请以适当增强宽限期制度效力,不仅能够矫正制度缺陷,而且为构建相关冲突利益平衡提供了一种新的现实可行的路径。

In order to solve the contradiction between the need of rapid public scientific research and the principle of patent novelty, the new grace period system came into being and was widely established in the innovation-oriented country. As a system of encouraging communication innovation under the background of privatization of property rights, its legal effect influences the realization of the value goal advocated by the grace period system and even the whole intellectual property system. However, the effectiveness of the system itself is flawed, that is, to give the grace period system in the statutory period to maintain the novelty of the legal effect is not enough to make its novelty without damage. Therefore, we can not only rectify the system defects, but also provide a new realistic and feasible way to construct the balance of interest by using the temporary patent application system to introduce patent temporary application in the grace period system.