专利有效性仲裁裁决与行政认定的衔接机制比较研究

A Comparative Study on Connection Mechanism Between Arbitration Awards and Administrative Determination of Patent Validity

当专利有效性争议可提交仲裁解决后,协调仲裁权与行政权的关系,加强仲裁裁决与行政认定的衔接显得尤为重要。美国和瑞士分别建立了以书面通知行政部门为要件的衔接机制和经行政部门认可和执行的衔接机制,相较之下,美国的做法更有益于平衡仲裁权与行政权之间的关系。尽管我国专利效力认定的权力专属于行政机关,但仍可在承认专利有效性争议可仲裁性的前提下建立通报后申请行政机关审查的衔接机制,即当仲裁庭作出的专利效力仲裁裁决与行政认定结果冲突时,经当事人将仲裁结果通报给行政机关后,行政机关对该专利进行形式审查且保留最终决定权。这一制度设计既保证了专利权效力认定的一致性,又维护了国家公权力的权威性,较好地协调了私权与公权的关系,具有一定的合理性。

It is particularly important to coordinate the relationship between the arbitration right and the administrative power,and to strengthen the connection between arbitration awards and administrative determination when the patent validity dispute can be submitted to arbitration for settlement.The United States and Switzerland have respectively established a connection mechanism that takes the written notification to the administrative authority as an element and a connection mechanism that the arbitration awards of patent validity are recognized and enforced by the administrative authority.By contrast,the approach adopted in the United States is more beneficial to balancing the relationship between the arbitration right and the administrative power.Despite the fact that the power to determine patent validity belongs to administrative authority exclusively in China,it is still possible,on the premise of acknowledging the arbitrability of patent validity dispute,to establish a connection mechanism that allows application for examination by the administrative authority after notification.That means,in the case that the arbitration awards of patent validity are in conflict with the administrative determination,the administrative authority shall conduct a formal examination of the patent and reserve the final decision after the parties notify the arbitration results to it.This system not only ensures the consistency of the determination of patent validity,but also maintains the authority of the State public power,which reasonably harmonizes the relationship between the private right and the public power.