| With the coming of intellectual economy and the in-depth advancement of intellectual property strategy in China,the ownership and utilizationof patent technology and patent rights are universally valued by the society,patent transactions such as transfer,license and pledge are thriving.At the same time,as the symbiosis of social economy,the safety issue of patent transaction is gradually increasing,conflicts arising from the repeat authorization,“a woman married twice”,unauthorized disposal in patent transfer and patent pledge,the different transactions interweaving are increasingly emerging.For the above phenomena,the protection of the interests of trader in good faith involves many aspects,hereto the absence and imperfection of existing legislation restricts the further development of China's patent transaction.Since modern times,people's opinions about the value of property rights has experienced the change from property control to property utilization,and the rights protection also has experienced the development process from the the static protection of property rights to the dynamic security protection of transaction of property rights,many special good faith protection systems are established in various fields of civil law,such as apparent agency,property rights disclosure system,acquisition in good faith,creditor's rights superficial assignment.There is no doubt that safe transaction has become the the important value orientation of modern civil law and the main system content of the property law.Just like the development law of the exchange oftangible property rights,with the development and flourish of patent transaction,people will pay attention to the security of patent transaction from highlighting the patent rights protection,and the real economic life has asked for urgent system requirements for the security of patent transaction,the law must give active response to it,this is not only the urgent need for the practical problem,but also involves the realization of the goal of the patent system.The purpose of the patent law establishment,on one hand,by granting and protecting the inventor's exclusive rights and sole ownership to his invention for a certain period of time,and the inventor is entitled to receive corresponding remuneration to stimulate technological creation;on the other hand,promote the development of the social economy by popularization and application of the technology to improve people's well-being.For the relationship between the two,the former is the means,the latter is the purpose,the former is embodied in the authorization and protection of patent rights,the latter is embodied in sparing no effort to promote the popularization and application of the technology.In order to promote the patent utilization and advance the development of social economy,it is necessary to create the safe patent transaction environment.The transaction security protection is the specific demonstration of the law's order value in the transaction field,establishing perfect patent trader in good faith protection is of great practical significance for maintaining patent transaction security,promoting people to actively conduct transaction,implement patent,fully realizing the patent's economic value.Due to the immaterial nature of the object of patent right,the legal nature of right generation and the uncertainty of right existence,the trader in good faith protection in the patent transaction always involves more complicated interest balance issue.For example,China's Patent Law clearly stipulates the invention and creation application rights and patent rights belonging,if one applying for a patent and obtaining the patent right is inconsistent with that having the ownership of the rights provided by the law,when the actual one obtaining patent authorization transfers this patent of the third good faith one without knowing this,how to deal with the relationship between the right holder and the good faith transferee? The current law does not give any stipulations,whether to use the stipulations about the acquisition in good faith in practice has different opinions.Different from tangible objects,the patent right is generated in accordance with the legal authorization,the authorization announcement is the legal basis of the emergence of the patent right,also thedemonstration way of patent right,there seems to be no inconsistency between the real state of ownership and the appearance of public notice.However,if starting from the standpoint of interest conflicts,the essence of the problem is also the conflict between the static belonging security of the rights holder and the dynamic transaction security of the trader in good faith,there is no essentially difference from the problem and value choice that the acquisition in good faith in the property law.However,if it is allowed to refer the rules of property acquisition in good faith,it seems that the protection of the interests of the patentee is obviously insufficient.Patent trader in good faith protection in other transactions is also involved in the special characters of the patent right,whether to protect and how to protect need to consider more influential factors.The property law of traditional continental law system is based on the dualistic distinction between property rights and creditor's rights,the rapid development of the intellectual property enables it to enter into the basic property right system in an independent manner.The different existence form of intellectual property object and real right object leads to people's different control and use of the two kinds of property,thus form the right content and system design with obvious differences.However,we can not only be limited in these two specific differences,the inner meaning relation between them also should be paid attention,grasp the common principles and common system requirements contained in the two on the whole.Based on the similar rights features such as property,dominance,absoluteness,exclusivity,property rights should exist as a property right most related to intellectual property,on account of this,the basic principle and system of property law have the most direct guidance and reference significance to the patent law.Therefore,using the theory of transaction security protection in the property law to study and rethink the patent transaction issue has been possible.Of course,during this process,pay attention to the appropriate system design combined with the characteristics of patent rights.Based on the above overall thinking,around the core issue of patent good faith person protection,the study content of this paper has six sections besides the introduction and conclusion and suggestion,the internal structural relationship is seen in the below figure:The main contents of the paper are:The first chapter is the basic theory of patent trader in good faith protection.Starting from analyzing basic concepts of transaction,good faith,trader in good faith,this chapter systematically describes the basis of the transaction security theory of good faith protection and the foundation of sociology of good faith protection in the traditional civil law,and makes the analysis of the basic category that the patent trader in good faith protection involves and provides the theoretic foundation for the study of the paper.The term transaction,as a basic category of economics field,people's understanding of its meaning experiences different stages.In classical economics,the word transaction had the same meaning as that of exchange,and the rise of institutional economics gave transaction with modern connotation.Commons covers the institutional meaning the transaction has,for the personal relationship,the transaction means the transfer of ownership between individuals in an order of law,custom.Transaction that Kos says refers to an economic activity process in which the owners of different factors of production conduct resource allocation under the action of market price mechanism in the market economic activity.Combining with the basic understanding of the transaction in the above mentioned economics,the transaction that the paper refers to mainly is the market transaction behavior occurring in the equal subjects.From the perspective of civil intercourse and civil system,the transaction is a paid legal action in which one party transfers property rights(interests)to the other party in accordance with the agreement and the other party pays the corresponding consideration.“good faith” is a common term in the modern civil law,but there is no general definition in legislation.Seen from the history development veins,the basic meaning of good faith from the perspective of the modern meaning is a subjective state of mind that the actor does not know or should not know the actual situation of a certain fact.This paper also summarizes the law phenomenon of good faith in this sense.Good faith protection aims to protect the reasonable trust of good faith person,the so-called reasonable trust,means trusting given on the basis of necessary and corresponding obligation,the evaluation of good faith in law is closely related to negligence,whether it is the negligence and the negligence degree are always the important consideration factors to decide whether it is good faith.In addition,the good faith in the civil law has clear connotation in the specific institution,though it embodies some requirement of honesty consciousness,it shall not be replaced by the rich subjective honest.The good faithed trader referred in this paper is the transaction party who fulfills his or her duty of reasonable care and still does not know the true situation of an important transaction.Transaction security is the modern civil and commercial law's important value concern.Transaction security refers to the security of the transaction behavior of the trading subject and its reasonable expected interests.The protection of trader in good faith reasonable trust interest is the core content of the transaction security.Transaction security protection has a rational basis,mainly expressed in: the attention is changed from the static security protection to trading security protection,it is the objective demand that market economy develops to a certain stage;compared with static enjoyment and superior protection of belonging safety,transaction security is the result of comprehensive tradeoff of order value,justice value and efficiency valueunder certain conditions;the reasonable protection for trader in good faith has the logical basis of scientific epistemology.The appearance theory under the concept of transaction security protection provides the medium level's theoretical guidance on the construction of the specific system of trader in good faith protection.The application condition of the appearance theory is mainly expressed in the existence of the appearance truth,the reasonable trust of the trader in good faith,oneself has the accountability.The consequences of the theory's application,or make the good faith relier be in a state of transaction consistent with his supposed condition,make him "get what he wants",or compensate the trust loss suffered by the relier,make the relier be in a state of transaction happening.Under the guidance of the transaction security concept,the application scope of the appearance theory is constantly expanding,the good-wiled protection of the intellectual property field also arouses people's attention.In addition,the social scientific research on trust provides the solid basis of sociology of law for the establishement of the civil law's good faith reliance protection principle and relevant systems.Trust and reliance,their meanings are very close,the law theory uses the word reliance,which emphasizes the dependence or reliance on the basis of trust,the law is more concerned about institutional arrangements between parties in situations where there is trust.The trust has an important social function in maintaining human's life,it is the basis of the normal development of human's living relationship.With the economic development and social structure transition,the trust experienced the social transition from specific personality trust to system trust.The system trust is a kind of subjective and determined trust,mainly relying the relevant system to advance and guarantee.As an indispensable condition of social intercourse,necessary measures should be taken in law to promote and protect reasonable trust,liability for breach of contract,contracting negligence liability and acquisition in good faith in property law,promote the trust and reliable relationship in the market transaction to keep the transaction going successfully from the institutional layer.As Larenz said,"only when the necessary trust is protected will it be possible for human beings to coexist peacefully under the law that guarantees everyone's due." 1Protecting necessary and reasonable reliance is our modern society's internal need,it is the basic law order value concrete embodiment.Patent rights are private in nature,and patent trader in good faith protection should follow the general concept of good faith protection in modern private law on the whole.Patent,patent transaction,patent trader in good faith compose the basic category of patent good faith transaction protection.Due to the difference of object form,patent right has its own particularity compared with ownership right,these particularities constitute their noumenon as independent rights,and the common "materiality" of the two objects makes them have an inseparable internal relations,the difference between patent right and ownership should not prevent the reasonable explanation of ownership,exercise and protection of patent right according to the principle of property law.Of course,this process shall take independent thinking by combining with the patent characteristics.The second chapter is the issue and reason analysis of China's patent trader in good faith protection.This chapter takes patent transfer,patent license and patent pledge as the main objects of analysis,and explains systematically the common trader in good faith protection issues and main situations in patent transaction.Conclude the reasons of the problems,the trader in good faith protection is mainly divided into unauthorized disposal,repeated license,and invalid announcement.The object's immateriality,uncontrollability and the legal and uncertain nature of rights themselves are the internal causes of the trader in good faith protection,and the insufficient institutional supply and weak theory study are the important external factors that lead to the lack of protection for the trader in good faith in the patent transaction field.The third chapter is the necessity and legitimacy of patent trader in good faith protection.Patent transaction presents more complexity and risk due to the characteristics of immateriality and uncertainty of its object.For traditional property rights transaction,the transaction regulation with the core of protecting trader in good faith is rather complete,and plays an important role in practice,and in the patent transaction filed,the concept and institution design of trader in good faith protection is insufficient.The practical necessity to strengthen and perfect patent trader in good faith protection is specifically embodied in that that it is an urgent need to guarantee the security of patent transaction,an era need to promote the healthy development of small and medium-sized enterprises,and a need to timely correct the bias of theconcept of strong patent protection.The legitimacy of strengthening and perfecting patent trader in good faith protection lies in that it is the basic content presentation of the concept of security protection of property right transaction in patent transaction,the internal requirement of the legal principle of reliance protection,and the concrete development of the principle of interest balance in intellectual property.The fourth chapter is unauthorized disposal type trader in good faith protection and institution perfection.This chapter combines the basic principle of the acquisition in good faith system in property law,takes deep thinking about the patent acquisition in good faith this important practical issue,and makes specific institution discussion about how to protect the patent good faith transferee.Unauthorized disposal of patent essentially involves the conflict of interest between the real rights holder and the third party reasonably reliance,and it also has the value selection issue when the static belonging interest and dynamic transaction security interest are contradictory.On the basis of the same legal attribute and the common unauthorized disposal applicable situation between the patent right and the real right(especially the ownership),seemingly shall confirm the patent acquisition in good faith system similar to real estate acquisition in good faith,The patent right does not have the institutional basis and balance mechanism of acquisition in good faith system which is applicable to the property right,ignoring the particularity of the patent object and directly using the regulations of real estate acquisition in good faith will cause excessive harm to the interest of the real rights holder,and further to affect the realization of the goal of the patent law establishment.Based on the immateriality of the patent object,the legality of right generation and the existing review system,although the good faith transferee can not be given strong protection similar to the property right acquisition in good faith,it does not mean that the transaction security can be ignored,the patent law can not isolate itself from the reasonable selection of guaranteeing the transaction security,promoting transaction efficiency and reasonable reliance protection.The paper thinks,in order to standardize the patent transaction order,reasonably balance the interest of each party,efforts should be made in the following aspects:For the common defects of the initial registration of patent rights which are not caused by the will of the real right holder,the interest balance model of transfer claim of legal right holder and general permission right of good faith transferee should be constructed.The specific content is that an invention creation is applied for a patentby the person who does not have the right,and the legal right holder has the right to request that the application be transferred.It this application has been authorized the patent right,the legal right holder has the right to ask the patent holder to transfer this patent right;prior to the transfer registration of the patent right in accordance with the request,the good faith transferee or licensee shall be entitled to a general license within the scope of the original or intended implementation,but the new patent holder shall be paid the reasonable license fee.Secondly,for the unauthorized disposal caused by the patent right registration defects which are formed by the real rights holder's willingness participation,the good faith transferee shall be protected preferably.If the co-owner agrees to share the patent benefits but applies for the patent in the name of one party,afterwards the unauthorized disposal caused by the registered nominal owner of the patent violating the agreement and transferring the patent to a good faith third party without knowing,or the latter transaction contract constitutes unauthorized disposal which is led by the former invalid and canceled transfer contract,the right holder has the accountability for the formation of registration defects,starting from protecting transaction security,maintaining registration stability and interest balance,the third good faith party's patent right shall be legally confirmed,at this moment quasi-property right acquisition in good faith can be appropriate.If all elements of acquisition in good faith cannot be met,considering protecting the good faith transferee's practical interest,or referring to the above mentioned standardized design of the initial defects of patent right,grant the good faith transferee the right to obtain general permission within the scope of the original implementation and prepared implementation,and shall pay reasonable license fee to the obligee.The fifth chapter is repeat license type trader in good faith protection and institution perfection.This chapter mainly discusses the patent license usage right law nature and its set mode,and proposes announce system to protect the trader in good faith based on it.The position of the nature of right of patent license usage essentially depends on its personal feature and the practical right content.In terms of exclusive license usage right,the obligee obtains an exclusive patent implementation right within a certain scope in accordance with the agreement,has the right to forbid any third party exercising the same content,when the third party interferes the implementation of the obligee's exclusive patent right,the obligee has the right to file a suit in the name ofhimself or herself,has the quasi-property feature,the property change announcement system can provide reference to the change of exclusive license usage right.In consideration of nonexcludability of the content and effectiveness of ordinary license usage right,positioning it as the creditor's right fits for this right's internal basic feature,it is appropriate to take the nature of the creditor's right as the base point to do relevant rules setting.Of course,the basic positioning of the nature of the creditor's right does not affect its registration resistance effectiveness entitled due to practical need in case of an exception.In the national civil law of continental law system,the legislation mode of property change based on the law behavior mainly has concensualism and formalism,correspondingly,the setting of the exclusive patent license usage of quasi-property has concensualism and formalism(specifically include creditor's right formalism and quasi-property formalism)possible modes.In terms of international change regulations about the exclusive license usage,nations with continental system mostly refers to property theory to establish the change mode of exclusive patent license usage right,but it is not the same mode selection as the its own country's property change.Different modes selection are mostly a selection of legislation technology,which legislation mode is best,make a selection depending on the country's law culture tradition,economic and social need and the corresponding perfection of the system.Comprehensively balancing the value need of freedom,order,justice and efficiency,combining the nature of the exclusive patent license usage right and our country's status quo,this paper thinks important document registration mode is more reasonable.Based on the above understanding,this paper thinks that the current contract records registration system shall be transformed to right announcement registration system,and it needs to make specific improvement in terms of announcement content,registration procedure and liability of compensation.The sixth chapter is invalid announcement type trader in good faith protection and institution perfection.This chapter conducts deep study of the relevant contract effective and fulfillment issue in the invalid patent on the basis of illustrating the patent invalid announcement system's legal value and basic content,aiming at the existing shortcoming of our nation's legislation,the paper proposes the system advice of protecting patent trader in good faith and balancing both parties' interest and specific relief path.Patent invalid announce procedure is a system of patent legislation that mostcountries universally established at present,which is considered as the most important legal measure to balance the patent right holder and social public interest.The consequence of retrospective effect of invalid announcement deeply influences the effectiveness and consequence arrangement of various patent transaction behaviors based on the patent right,though most countries' practice and legal basis are different,the practical results still have consistency,which is mainly reflected in that deny the paid usage fee prior to the contract effectiveness,patent becoming invalid,the transfer fee is not returned by principle and malice exception.China's Patent Law article 47 aims to seek a kind of balance between maintaining social economic order and realizing the legal justice.However,since our legislation concept of patent contract effectiveness regulations is far behind,the patent trader in good faith interest protection is obviously insufficient,the transaction contract that is not fulfilled and being fulfilled will be considered invalid due to patent's invalid retroactive effect in accordance with the current law,this does not only eliminate the the party's contract freedom,but also possibly make the licensee stuck into operation dilemma without the other party's assistance due to the invalid contract for the licensee who has made large input and the following technology implementation still relying on the licensor's technology guidance.At the same time,the existing Patent Law article 47 also leads to a lot of uncertainty in the application of the law due to the unclear definition criteria of abstract terms such as malice and obvious violation of justice.The object's initial impossibility shall not affect contract effectiveness by principle,"object impossible contract effective" has become the new trend of the development of the contract law nowadays.Combined with the development trend of the object's impossibility theory,based on the basic ideas of the contract law,such as encouraging transactions,contract freedom and economic efficiency,starting from the legality and uncertainty of patent right,and protecting trader in good faith,this paper thinks that the patent invalid announcement decision on the retroactivity of the patent right shall not affect the effectiveness of the patent contract concluded prior to the patent invalidation,suggests that China's Patent Law should be added the below improvement contents: a decision declaring the patent right invalid,the patent licensing contract and patent transfer contract that have not been fulfilled or are being fulfilled before the invalidation of the patent right do not have retroactive force.After the patent right is lost due to invalidation announcement,the parties may terminate thecontract.The party who terminates the contract shall not return the patent usage fee and transfer fee that have performed,but the party who obviously violates the justice principle shall return all or part.Under the frame of contract validation,the suitable relief path for patent trader in good faith is that if there is an agreement,it shall be handled according to the agreement,if there is no agreement,it shall be handled according to relevant legal provisions.Upon termination of the contract due to cancellation of the contract,in order to continue to implement the technology,based on the principle of good faith,the transferee and licensee may request the other party to continue to provide technical guidance and assistance as agreed in the original contract,but shall pay reasonable expenses.In the last conclusion and suggestion part,this paper proposes that taking the concept of transaction security and good faith protection as the guidance,construct the relevant good faith protection in the whole process from patent authorization,patent right exercise to patent right being declared invalid,the improvement of the legislation mainly includes: system construction of legal right holder's transfer right and ordinary license acquisition right of trader in good faith,construction of patent licensing change announcement system and counter-effectiveness model,the patent invalidation announcement not affecting the previous transaction contract's effectiveness.At the same time,it also proposes that the judicial level should actively and cautiously explore the reasonable way of protecting trader in good faith in combination with patent characteristics,the theoretical research layer shall be paid enough attention and actively followed,construct the protection theory of patent trader in good faith,and the theory,legislation and cases should be promoted mutually,so as to form a benign interactive legal operation system. |
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