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Excellence of Judicial Protection of Outside Intellectual Property Protection

May 05:36, May 08, 2020 Source: "China Social Sciences", May 8, 2020, No. 1921 Author: Li Wei Chen Jiaju

　　Strengthen the protection of intellectual property rights in the modernization of the national governance system and governance capabilities。Germany、Intellectual property protection and development experience in the United States and Japan is very rich，Analysis of the relevant system，Provides useful reference for improving the judicial protection of intellectual property in my country。

　　Creation of a technical judge

　　1961，The establishment of the German Federal Patent Court broke the separation of German administrative lawsuits and invalid lawsuits.，Germany has also become the world's first country to set up a court of intellectual property cases。The German Federal Patent Court is equivalent to the first level of the High Court，Dissatisfied with the referee of the patent court，Appeals to the Federal Supreme Court，But must meet certain conditions，Usually under the circumstances，The judgment of the Federal Patent Court has the final effect。On the court's organizational structure，The Federal Patent Court first divided the judges into legal judges and technical judges，Both have a lifelong title。According to the German Patent Law，Technical judge not only needs to be qualified for judges，and must pass a national or natural or college -level exam bet365 live casino games through a certain field of technology or natural aspects，and work in related fields for more than five years。Due to the high requirements of the German patent law，It makes it difficult for ordinary people to meet，German technical judges are mostly selected in the German Patent Agency for more than seven years of senior reviewer。

　　During the referee，Technical judges must not only identify the facts of the facts to clarify the technical problems in the case，and also exercise judgment by exercising the right to judge in accordance with the legal provisions。other，Set internally，19 of the 29 courts in the German Federal Patent Court involved in technical judges，Including 13 invention patent appeal councils based on science and technology categories、5 invention patents invalid trial courts and 1 new and integrated circuit layout appealing court。and establish the composition of the trial court for different nature of the case，For cases that do not involve technical issues，Cases such as trademark rights，The trial court is usually composed of three legal judges，But when a case involving technical issues，The technical trial court is usually composed of 1 legal judge and three technical judges。Germany composition through a reasonable configuration trial court，Give full play to the functions and functions of the technical judge，Effectively guarantee the accuracy of the determination of relevant technical facts，Promoting the unity of the referee standard。

　　Established the US Federal Circuit CourtBreak the regional limit

　　In the 1970s，The U.S. incentives for technological innovation prompted a large number of intellectual achievements，The intellectual property dispute brought by it is also increasing。Under the jurisdiction system at that time，Appeals filed for the Patent and Trademark Office are tried by the Customs Court of Customs and Patent Appeals，Intellectual property appeal cases tried in the local courts of various states will be tried by the corresponding court appealing courts in various patrol areas，This has produced a series of contradictions。One aspect，The technical identification in patent cases is extremely difficult，Judges who need to have the corresponding professional knowledge for judgment，Its judgment conclusion has a significant impact on the results of the case，and general courts usually do not have professional talents in this area。On the other hand，Different appeal courts have biased understanding of the patent law，It is easy to cause different judgments in the same case，It can seriously affect the predictability of the judgment。To solve these contradictions，The United States established the Federal Circuit Court in 1982，Breakthrough regional restrictions Concentrated jurisdiction (Federal) District Court of the first instance appeal case。In the composition of personnel，Although the Federal Circuit Court avoids the word "patent" in its name，But its main duty is to resolve patent disputes。So，Professional skills or knowledge in a certain field becomes bet365 best casino games one of the conditions for the judge of the Federal Circuit Court Court，Ensure the professional ability of the judge through strict conditions。

　　other，In order to better cope with technical disputes，The Federal Circuit Court introduced a technical expert system。Technical experts in the United States not only provide technical support，Provide certain assistance during the trial。Technical experts are mainly divided into three categories in the United States: the first category is technical consultant，They have a strong analysis ability for technical issues，It can help solve the technical problem of the case。The second category is technical expert，The difference between it and the former is to testify in court，All their opinions may be regarded as evidence to adopt。The third category is called special experts，They relative to the first two types of experts，Do not need very professional knowledge，Generally by lawyers who are proficient in patent law,，It plays a role in combing legal issues。The detailed division of technical experts in the United States allows the responsibilities and tasks of the corresponding subject to be clear and specific，It is conducive to the advancement and development of the proceedings。

　　Japanese intellectual property cases are divided according to the type

　　The Intellectual Property Higher Court established in 2005 in Japan belongs to the Tokyo High Court。In terms of setting on the jurisdiction of litigation，Japan divides intellectual property cases into technical bet365 best casino games and non -technical，Technical cases include patent disputes、The right to use the configuration of semiconductor integrated circuit，Non -technical cases generally include design patents、Trademark rights, etc.。Where，The first trial of the technical case is from Tokyo、Osaka District Court jurisdiction，The case of the second trial is uniformly tried by the Intellectual Property High Court。Non -technical cases are under the jurisdiction of other local courts，Appeals cases are tried by the corresponding higher courts in the corresponding high court。Japan's division model effectively diverts intellectual property cases，Specifies technical cases to the special court for trial，It guarantees the unity of the referee standard; at the same time，Non -technical cases are still submitted to other courts for trial，not only reduced the burden on the work of the Higher Court of Intellectual Property，It also makes the corresponding judicial resources in China not be idle。

　　In terms of personnel composition，To solve some professional technical problems in the case of intellectual property rights，The Intellectual Property Higher Court also added non -dedicated members of the dedicated specialist in addition to the technical investigator，Both of them only make corresponding suggestions to the judge in the trial without grasping the right to judge。Technical investigator is a staff member who helps judges understand the corresponding professional knowledge，Depending on the judge's instructions to investigate related matters。Specialist members bet365 best casino games are experts or researchers in the corresponding fields，It is mainly a researcher in science and technology engaged in the forefront of the country，Involved in biological engineering、Chemistry、Mechanical、Electronic information and many fields。In specific cases，After the court can listen to the opinions of both parties，Decision to set up one or more specialized members to participate in the litigation dispute point and evidence processing procedure and reconciliation procedure in accordance with the application or power decision。Different from the investigator's full -time，Dedicated members adopt part -time job mode，Accept the appointment of the Supreme Court，term of office is usually 2 years，Receive allowances according to the amount of participating cases，More flexible and convenient，and the issuance of the corresponding opinions is more credible。The addition of the special committee system has solved the dilemma of the lack of domestic technical investigators in Japan，and fully mobilize and use domestic scientific research talents，Have a certain reference meaning。

　　(This article is the study of major issues of high -quality integrated development in the Yangtze River Delta "(19CSJZX04Z) phased achievement)

　　(Author Unit: School of Law, Zhejiang University of Finance and Economics)

Editor in charge: Changchang