1. Is applying for a patent an administrative act?
1. Is applying for a patent not an administrative act? It is an administrative act.
2. Patent authorization is an administrative confirmation act. If the applicant is dissatisfied with the patent decision made by the patent management department, he may sue in court.
3. Legal basis: Article 41 of the "Patent Law of the People's Republic of China"
If a patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject the application, he may request a review from the Patent Administration Department of the State Council within three months from the date of receipt of the notice. After review, the patent administration department of the State Council will make a decision and notify the patent applicant.
If a patent applicant is dissatisfied with the reexamination decision of the Patent Administration Department of the State Council, he may file a lawsuit with the People's Court within three months from the date of receipt of the notice.
Article 46 The patent administration department of the State Council shall promptly review and make a decision on a request to declare the patent right invalid, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
Anyone who is dissatisfied with the decision of the Patent Administration Department of the State Council to declare the patent right invalid or to maintain the patent right may file a lawsuit in the People's Court within three months from the date of receipt of the notice. . The people's court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.
2. The characteristics of administrative behavior are What
1. Administrative action is an act of executing the law. Any administrative action mustIt has a legal basis and is of subordinate legal nature. Without the explicit provisions or authorization of the law, the administrative subject shall not take any administrative action.
2. Administrative behavior has a certain degree of discretion, which is determined by the limitations of legislative technology itself and the extensiveness, changeability, and adaptability of administrative management. of.
3. The administrative subject has unilateral will when implementing administrative actions, and can make them independently in accordance with the law without consulting with the administrative counterparty or obtaining its consent. Even in administrative contract acts, in terms of the conclusion, modification, termination and performance of administrative contracts, administrative subjects have unilateral will that is different from civil contracts.
4. Administrative actions are implemented with the coercive power of the state and are coercive. The administrative counterpart must obey and cooperate with the administrative actions. Otherwise, the administrative body will impose sanctions or enforce enforcement. This kind of coercion is closely related to the unilateral will. Without the coercion of administrative action, the unilateral will of administrative action cannot be realized.
5. Administrative actions shall be free of charge in principle, with paid exceptions. What administrative subjects pursue is international and social public interests, and their collection, maintenance and distribution of public interests should be free of charge. When a specific administrative counterpart bears a special public burden or shares a special public interest, he or she should be compensated. This is the issue of fair burden and benefit burden.
Through the above analysis, we know that according to the provisions of the Patent Law, applying for patent rights to the patent management department is not an administrative act in itself. The patent management department reviews the patent application and makes relevant decisions, which are administrative confirmations. If the applicant is dissatisfied, he or she can file a lawsuit in court. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the legal Saviour.com consults a professional lawyer.
