专利行政执法与专利权私权属性辨析

专利权的私权属性是否排除专利行政执法,这一直是理论界和实务界争议的热点问题。从法理上看,专利权作为私权,有权获得私力和公力救济,后者自然包括行政执法;从实体法上看,专利权作为私权,与传统的民事权利存在明显差异,不能简单套用民法原理;从程序法上看,亦不能完全适用民事程序,而是要增加行政与刑事程序的救济途径;从发展趋势上看,采用专利行政执法加强专利权保护,既是很多国家的共同选择,也是专利权保护的世界潮流。

Discrimination of Patent Administrative Law Enforcement and Privilege of Patent Right

Whether the private property right of the patent should exclude the patent administrative law enforcement, which has been a hot issue in the theoretical and practical circles. From the legal point of view, the patent right as a private right, the right to obtain private and public relief, which naturally includes administrative law enforcement. From the substantive point of view, the patent right as a private right, and the traditional civil rights there are significant differences, cannot simply apply the principle of civil law. From the procedural law point of view, cannot fully apply to civil proceedings, but to increase the administrative and criminal procedures relief. From the development trend point of view, the use of patent administrative law enforcement to strengthen patent protection, is a common choice of many countries, but also the protection of the world trend of patent protection.