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尽管在国际社会中,仲裁的事项范围一直呈现扩大化的趋势,专利效力的问题因涉及公权力的因素而历来成为很多国家可仲裁范围的禁区。笔者从专利权的本质属性入手,说明专利权是可自由处分的私权;进而阐述专利有效性纠纷是民事争议,并不是我国仲裁法所排除的行政争议事项;最后论述专利仲裁并不构成对公共利益的危害,得出专利效力争议具有可仲裁性的结论。本文所讨论的专利效力的争议仅指基于双方所签订的专利权合同而产生的对专利效力的争议。
Although in the international community, the scope of arbitration has been expanding, the issue of patent effectiveness has always become a forbidden zone for the arbitration scope of many countries because of the public power. The author starts from the essential attribute of patent right, and shows that the patent right is the free right to be punished. Furthermore, it elaborates that the patent validity dispute is a civil dispute and is not an administrative controversial matter that is excluded by the arbitration law in our country. Finally, the discussion of patent arbitration does not constitute a The harm of the public interest, draw the conclusion that the controversy of patent effect is arbitratable. The controversies on the validity of patents discussed in this article only refer to disputes over the validity of patents based on the patent contracts concluded between the two parties.