日本专利权当然无效抗辩原则及其启示

当然无效抗辩是指,在专利权侵权民事诉讼中,被告可以直接主张原告专利权＂当然无效＂因而抗辩自己的行为不侵害其专利权。当然无效抗辩具有独立价值,它赋予了法院在个案中认定专利权是否存在无效理由的权力。当然无效抗辩的提出只要具备专利权无效理由这个要件即可,但在除斥期间经过后,被告无权再提出当然无效抗辩,专利权无效审理非适格请求人在专利侵权诉讼中也可以主张当然无效抗辩。由于宪政体制、司法体制等多方面的原因,在暂时尚未具备采纳美国赋予法院最终确认专利权效力做法条件的情况下,作为一个过渡性的措施,在专利权确权机制方面,我国专利法有必要吸纳当然无效抗辩。

The Principle of the Defense of Definite Invalidation of Patent in Japan and Its Implication

The defense of definite invalidation of patent means that the defendant can directly defends in patent infringement litigation not to infringe the complainant＇s patent on the ground the patent is invalid,if the said patent is recognized as the one that should be invalidated by a trial for patent invalidation.The defense of definite invalidation of patent is different from the defense of existing technology and that of abuse of right,it empowers the court to judge whether patent is valid case by case,breaks the traditional boundaries of functional division between the court and the patent bureau and makes judicial trial of patent infringement litigation effective.The plea for the defense of definite invalidation of patent only needs the invalid reasons of the said patent,it is not necessary for the defendant to plea for a trial for patent invalidation.However,the terms of validity of right is expired,the defendant should not plea for it.The disqualified applicant for a trial for patent invalidation may plea for defense of definite invalidation of patent according to the paper.In order to seek for a reasonable approving and disapproving process of patent,China may utilize the principle of the defense of definite invalidation of patent as a transitional measure.