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所谓重复授权专利简称重复专利,是指已取得专利局授予的专利权,但其全部技术特征与在先授权的专利的技术特征完全相同的专利.从理论上讲重复授权现象是不应该发生的,但由于专利权是专利局根据法定程序审查而授予的,不可能做到绝对无误,加上实用新型专利采用不经实质审查的“登记制”,所以现实中不可避免地存在着重复授权专利.对于如何处理重复授权专利引起的纠纷,目前我国学术界和司法界有不同的观点和做法.一种认为:既然获得了专利权,就应该视为有效专利,应受法律保护,专利管理机关和人民法院无权代表国家宣告专利权无效.因而处理这类涉及重复授权专利的纠纷时,应先经无效宣告,再解决侵权纠纷的“二步处理”程序.另一种认为:处理这类纠纷,可根据专利法先申请原则直接处理,而不必经过无效宣告程序.笔者赞同第二种观点和做法.
The so-called duplicate authorization patents referred to as duplicate patents, patents have been granted the patent office has been granted, but all of its technical characteristics and patents previously authorized the same technical characteristics of the patent in theory repeat the phenomenon of authorization should not happen However, since the patent right is granted by the Patent Office according to the statutory procedure examination, it is impossible to be absolutely correct. In addition, the utility model patent adopts the “registration system” without substantive examination, so in reality, there are inevitably duplicate patents At present, there are different opinions and practices in academia and judicial circles in our country about how to deal with the dispute caused by duplicated authorized patents, which holds that since patent right is obtained, it should be regarded as effective patent and should be protected by law. Patent administrative organ And the people's court has no right to declare the patent right to be invalid on behalf of the state, so when dealing with such disputes involving duplicated patents, the “two-step process” of the infringement dispute should be resolved after the invalidation, and another kind of treatment: Disputes can be dealt with directly according to the principle of patent law first without having to go through the procedure of invalidation.I agree with the second viewpoint and practice.