论专利复审委员会的非“准司法性”

The Patent Reexamination Board(PRB) of China now belongs to administrative institutions. In dealing with some problems of patent right verification mechanism in China, such as links too much, time is too long, or even cycling and other ills, there is a kind of view claims that the PRB should be qualified as a quasi-judicial institution, and the patent reexamination as the first-instance judgment. But, this above mentioned advice meets with obstacles of both practice and theory: Firstly, The PRB review cannot guarantee the "trilateral" structure needed by quasi-judicial because of the lacking of the construction of the judicial process. Secondly, Private rights nature of patent has nothing to do with the Board nature, and PRB Can't be defined as a civil referee simply relying on the private rights nature of Intellectual Property. Thirdly, the procedure rules nature can't determine the nature of the legal entity, let alone the rules of the Board review process are not the same with the civil trial procedure rules. It should be pointed out at the same time that the efficiency and cost considerations cannot support the "quasi-judicial" position of the PRB, either system design abroad. To solve the above problems need combined with Chinese Intellectual Property trial pilot experience and development trends of the reform of the judicial system, the implementation of Intellectual Property Rights trial fairness and efficiency, strengthen the exclusive jurisdiction, and the function of substantive patent court.