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Withdrawal of Lawsuit in the Administrative Litigation
Linda Liu & Partners
In the previous IP News, the trend of the Chinese Patent Law amendment was discussed, especially the issue concerning the type of the litigation against the Decision of the examination of request for invalidation. I have received so many feedbacks from readers and have also learned a lot therefrom. Taking this opportunity, I would like to express my sincere appreciation. Once there is any further amendment thereon, I would share it with you.
As prescribed by the present Chinese Patent Law, the litigation against the Decision of the examination of request for invalidation still belongs to administrative litigation. Taking the fact into consideration, in this article I would like to briefly discuss about the latest judicial interpretation concerning the reconciliation between the plaintiff and the third party in the administrative litigation.
In view of the characteristics of the administrative litigation, there is no possibility of reconciliation between the plaintiff and the Patent Reexamination Board. If the plaintiff has reached a reconciliation with the third party out of court, the plaintiff will usually withdraw the request of the administrative litigation. To the plaintiff, it can only terminate the administrative litigation, and it does not mean that the unfavorable Decision of the examination of request for invalidation to him is changed or revoked For example, if it is judged that the patent right is invalid or partially invalid in the Decision, then, even if there is a reconciliation between the plaintiff and the third party, the patent right will still be judged as being invalid. That is, the administrative decisions of sustaining the validity of patent right or declaring the invalidity or partial invalidity of patent right will still come into effect. It is apparent that the plaintiff and the third party might not take such a condition as the preferable one.
Therefore, the reconciliation issue in the administrative litigation is always a hot topic attracting attention and discussed by the legal profession over the years. Particularly, there has been a focus of attention to the issue of whether the conciliation result between the plaintiff and the third party will effect the administrative decision. With respect to this matter, the judicial interpretation of “Supreme People’s Court’s Regulations on the Issue of Withdrawing an Administrative Litigation”, which was promulgated by the Supreme People’s Court on January 14, 2008 and entered into effect on February 13, 2008, has clearly prescribed about the issue. The clauses of the interpretation relating to this issue are as follows:
Article 2.If the defendant changes the specific administrative litigation sued by the plaintiff and the plaintiff withdraws the action, the people’s court shall make an adjudication of permission when the following conditions are satisfied:
(1) There exists the truthful declaration of intention that the parties withdraw the lawsuit;
(2) The change of the sued specific administrative litigation by the defendant should not violate any provisions of laws and regulations, exceed or abandon duties, damage the public interests or the legal rights and interests of others;
(3) The defendant has changed or decided to change the sued specific administrative litigation, and also notifies the people’s court in writing;
(4) The third party has no opposition.
Article 4. In the event of any of the following articles, it should be recognized that “the defendant has changed the specific administrative litigation he has done”:
(1) To fulfill the legal duties upon the plaintiff’s request;
(2) To take the corresponding measures, like remedies, compensations, etc.; or
(3) To approve the reconciliation between the plaintiff and the third party in writing in the administrative adjudication cases.
As apparent from the above contents marked with bold-face and underlined, it can be concluded that once the plaintiff and the third party reach a reconciliation, it can be the ground of requesting the Patent Reexamination Board for the change of the previous Decision of the examination of request for invalidation so as to prevent the Decision unfavorable to the plaintiff from coming into effect.
A hypothetic example is taken below to illuminate the specific steps during an administrative litigation brought against a Decision of the examination of request for invalidation to achieve a reconciliation and withdrawal of lawsuit using the above provisions. Wherein, the plaintiff is a patentee, the defendant is the Patent Reexamination Board, the third party is the petitioner who institutes the request for invalidation, and the patent right is determined as being totally invalid in the Decision of the examination of request for invalidation.
Step 1: Being not satisfied with a Decision of the examination of request for invalidation, the patentee brought to the court an administrative litigation requesting a withdrawal of the Decision, and the court accepted the request.
Step 2: The patentee and the petitioner reach a reconciliation;
Step 3: The patent Reexamination Board approves the reconciliation reached by the patentee and the petitioner in writing;
Step 4: The Patent Reexamination Board revokes the Decision and notifies the people’s court in writing;
Step 5: The patentee requests for the withdrawal of a lawsuit;
Step 6: The people’s court makes the adjudication, permitting the patentee to withdraw the lawsuit.
In the above example, by reaching a reconciliation with the petitioner, the patentee makes the Patent Reexamination Board revoke the Decision judging the patent right to be completely invalid, and thereby maintains the validity of the patent right.
In conclusion, according to the above provisions, with respect to the administrative litigation concerning civil disputes between the plaintiff (the administrative counterpart) and the third party, the plaintiff and the third party may change the administrative decision made by the administrative authorities by reaching a reconciliation agreement. The proceedings not only meet the requirement or wish of the plaintiff and the third party, but also save the litigation resource and improve the litigation efficiency, which are favorable to all of the administrative authorities, the plaintiff and the third party. It is noted that utilizing the above provisions during the administrative litigation against the Decision of the examination of request for invalidation, the plaintiff and the third party may resolve the dispute between the parties quickly and effectively by selecting the favorable means to the parties.
