| The open license system was founded in the British patent law,and has been cited by most countries,the purpose is to promote the transformation of patented technology,but the actual effect is not ideal,and even some countries banned the system.In order to stimulate the vitality of the patent market,China has formally introduced the open license system,but the introduction of the system has been controversial in the academic circles.The focus of the dispute lies in whether it is proper for the state organs to intervene in private rights transactions as the subject of public power,and whether the degree of intervention is reasonable? Some doubt that there are precedents for public power to intervene in patent licensing transactions,such as patent compulsory licensing,so there is legitimacy for public power to intervene in patent licensing transactions in patent open licensing system.However,the compulsory license is done by the public power for a specific purpose,while the open license system is the behavior of the public power intervening in the patent license trading market.Therefore,the construction and implementation of the open license system need to restrict and restrict the public power to a certain extent,and should not interfere too much in the license transaction.At the same time,the public power should not allow the implementation of the system,otherwise it is the same as ordinary licensing.However,how to restrict and restrict the public power in the open license system?First of all,we need to identify the nature of public power in the open license system.The process of public power to implement open license system belongs to administrative process.The intention of public power intervention is to build a trinity payment system of the state,society and citizens through a rigorous and complete system,in order to achieve a balance between the national financial resources and social effects.The open license system promotes the sharing of social resources by the public through the establishment of a trinity administrative system of state organs,the public and the patentee,and the compensation of the patentee’s rights by the state organs through the reduction of patent fees and other measures.On the one hand,the public has the desire for technological innovation,and needs to use patent technology to achieve technological progress and innovation;on the other hand,the total amount of patent technology is limited.If the use and distribution of patent technology by state organs is unreasonable,and the limited resources can not be used in the most valuable place,then the waste of patent resources will lead to the dissatisfaction of the public.Secondly,we need to confirm the logical premise and rule adjustment of the principle of proportion applied in the open license system.The purpose of the principle of proportion is to restrict the civil rights according to the needs of public interest,and the principle of proportion restrains the restriction,which aims to ensure the substantial fairness of the public.The implementation of open license system is based on the need of patent technology resources sharing,which is restricted by the principle of proportion.The logic premise of the principle of proportion in the administrative process is: first,the administrative process adjusts the unequal legal relationship,the service consciousness of the administrative process weakens the power color,but not completely excludes,the state organ still has the control and the decision power;secondly,there is a wider discretion in the administrative process,and the potential negative effect of the administrative process is hidden.In the patent opening license system,if the exercise of public power is improper,the patentee loses the legal monopoly and exclusive license,which is the negative effect of the patent opening license system;thirdly,the administrative process especially needs the balance of public and private legal interests,and the administrative process is the redistribution of the state public resources.The logical premise of proportionality principle is: first,the patent right protected by the principle of proportion cannot be absolutely protected and has the limitation;secondly,the principle of proportion examines the rationality of state power,prevents the abuse of discretionary power,and the state limits patent right and implements open license through public power.Whether the policy reasonably needs proportion Review of principles.Among them,the condition that the principle of proportion applies to the patent opening license system is the restriction of the rights of the object of the proportional principle examination,which mainly occurs between the state organs and the subject of private rights,and the subject of the restriction on patent mainly occurs between the state organs and the patentees.The main position of the administrative process of open license system is not equal.The means of granting benefits of administrative organs are discretionary of "maximum protection".The acts of patent fee reduction and pricing right are the most protective means.Therefore,the rules of the principle of proportionality applied to the open license system are adjusted as follows: 1.The review of the principle of appropriateness is changed from maintaining social order to increasing the public interest;2.the review of necessity principle is adjusted from the minimum infringement to the maximum protection;3.the review of the principle of balance is adjusted from a proportionate adjustment to a balanced benefit.Finally,the principle of proportionality is applicable to the field of open license system.First,the principle of proportionality of the legislation creation of open license system is mainly aimed at the examination of whether the provisions of the pricing right of license fees conform to the principle of proportion;secondly,the principle of proportionality in the enforcement process of open license system is applicable.The structure of administrative process is not single,it is necessary to have the obligation of payment,but also the power of supervision and restriction,which is given to the government The payer does not only accept the right to pay,but also obey the obligation of supervision and instruction;thirdly,the principle of proportionality of the consequence evaluation of the open license system is applicable.The end of the implementation of the open license system does not mean the end of the administrative process of payment.The evaluation of the results of administrative enforcement needs to be carried out,while the dual track dispute between the administrative and judicial organs is implemented in the system Whether the solution mechanism is reasonable or not,the principle of proportion should be reviewed as the judgment standard.The application of the principle of proportion arises when the public power limits the supervision and restriction in the process of formulating,implementing and evaluating the patent opening license system.In addition to the introduction and conclusion,the main part of this paper is divided into four chapters.The first chapter mainly discusses the application dilemma of patent open license system.This chapter mainly puts forward the existing dispute focus of patent open license system,that is,whether public power intervention in patent license behavior is justified.If we choose to protect the public interest,then the public power should intervene in the patent market.If we choose to protect the interests of private rights,then the public power should not intervene in the construction of free competition order.The solution to the dispute is to use the principle of proportionality to review the public power’s intervention in patent licensing,and to limit the excessive intervention of public power in patent open licensing system,so as to standardize the patent open licensing system,so as to achieve the balance between public interest and private interest.The first section of this chapter focuses on the analysis of the existing dispute focus of patent open license system.The dispute focus of patent open license system mainly focuses on whether the public power intervention in patent license behavior is legitimate and feasible.Of course,there will be doubts in reality,and it is believed that the compulsory license of patent belongs to the public power intervening in the patent license behavior,and its legitimacy and feasibility are beyond doubt.However,the compulsory license of patent is only limited to the patent license behavior in specific fields.In the patent open license system,the public power intervenes in the whole patent license market,and the scope and degree of its interference is far more than the compulsory license.However,whether the patent licensing market of our country needs the public power to intervene through the patent open licensing system;How to intervene in order to avoid the adverse effects of transitional intervention,to explore the answers to these questions is also the purpose and original intention of this paper.The second section of this chapter focuses on the origin of the dispute of patent open license system,that is,the value choice of patent open license system.If we choose to protect the public interest and safeguard the public’s rights and interests of sharing technical information,the public power should intervene in the patent licensing behavior,and the patent open licensing system has its legitimacy;If we choose to protect the interests of the private subject and reduce the interference and restriction on the patentee’s rights,then the public power should not intervene in the patent licensing behavior,and the construction of the patent open licensing system should follow the law of the free competition order in the patent licensing market.However,the value choice of patent open license system in China is to protect the public interest,promote the vitality of the patent license market,and enhance the patent conversion rate.The special attributes of patent open license system can ensure the realization of this value.The third section of this chapter focuses on the specific embodiment of the above disputes in the patent open license system.On the one hand,the unreasonable distribution of pricing power leads to the imbalance of interests among the subjects of patent open license system,which mainly focuses on whether the public power is involved in the disputes;On the other hand,the patent open license system lacks the necessary right protection mechanism to guarantee the realization of the pricing rights of the patentee and the relevant public,mainly for the specific embodiment of the degree of public power intervention.The second chapter of this paper mainly explores the power limitation of the public power subject in the patent open license system.By referring to the basic principle and application basis of the principle of proportionality,this paper defines the authority of the public right subject in the patent open license system,so as to solve the application dilemma of the patent open license system in practice.When the public power interferes with the patent licensing behavior in the process of creation,it is necessary to use the principle of proportionality for correction.The reason is that when the pricing power is directly given to one party of the contract,the autonomy of private law and the freedom of contract have become the tools for the strong Party to seek benefits,The interest balance mechanism in civil law has been out of order,so the legislators have the obligation to intervene the freedom of contract in patent open license system.At the same time,it needs public power to intervene in the right protection mechanism to ensure the realization of relevant rights in the process of implementing patent open license system.Therefore,if the authority of the public power subject is limited and regulated to a certain extent,it can play a positive legal effect in the patent open license system.The first section of this chapter analyzes the legal attribute of patent open license system.Through the analysis of the concept,content and composition of patent open license system,we can see that patent open license system is a system of redistribution of public interests by public power,which determines that the nature of the system belongs to the specific measures of right restriction.Public power is equally distributed to the public by limiting the private interests of the patentee,so as to realize the redistribution of social public interests.On this basis,the patent open license system is compared with compulsory license and statutory license.The compulsory license of patent and the legal license of copyright belong to the process of public power intervening in private rights and distributing benefits.But the difference is that the patent open license system belongs to the voluntary public power intervening,while the compulsory license and the legal license belong to the involuntary public power intervening.Therefore,the public power intervention in the patent open license system has its legitimacy,and the main problem lies in the degree of public power intervention.The second section of this chapter mainly introduces the principle of proportion to define the scope of power of the public right subject in the patent open license system.Based on the application of the principle of proportion to administrative behavior,the logical premise of applying the principle of proportion in the patent open license system is derived.Therefore,the specific application rules of the principle of proportion should make corresponding adjustments to the authority of the public right subject in the patent open license system.In the process of implementation,it is embodied that the administrative body should change its functions in the implementation of patent opening license system,so that it can meet the requirements of the principle of proportion.The third section of this chapter mainly focuses on the principle that the public right of the subject of public right should conform to the principle of proportion in the implementation of the patent open license system.Administrative acts of administrative subjects are divided into the administrative acts of infringement,the administrative acts of the granting and the mutual benefit administrative acts.The executive administrative act of administrative subject to patent open license system belongs to the beneficial administrative act.According to the traditional administrative law theory,the principle of proportion is mainly applicable to the infringing administrative acts,mainly because of the principle of proportion which is produced in order to limit the infringement of public power on the civil rights and interests.However,with the diversification of administrative tasks,the types of administrative behaviors also develop.As the administrative law monarch clause,the scope of application of the principle of proportion has also been extended to the beneficial administrative act.And the beneficial administrative act has the logical premise of applying the principle of proportion.Therefore,the principle of proportion has the applicable conditions for the administrative subject to carry out the beneficial administrative act of patent open license system.However,due to the particularity of patent open license system,the rules of proportionality in this field need to be adjusted accordingly: first,the adjustment of the appropriateness of purpose is mainly from maintaining the order of patent market to promoting the welfare of public information sharing;Secondly,the necessity adjustment of means mainly includes the minimum infringement on the patentee and the maximum protection of the relative person;Finally,the equilibrium adjustment of "purpose means" is mainly from the proportionality between the purpose and the means to the mutual equilibrium between the purpose and the means.Under the restriction of the principle of proportion,the administrative body needs to change its functions in the implementation of patent opening license system,that is,from the manager to the service provider.Administrative services provided by administrative subjects shall conform to the principle of proportion,improve the welfare of patentees and relevant public,and protect the rights and interests of both parties to the greatest extent.Meanwhile,the administrative subject should strengthen the supervision of patent opening license system while enforcing the law flexibly.The third chapter of this paper mainly explores the rationality analysis of the pricing power distribution scheme of patent open license system.The fundamental reason why the patent open license system has little effect in foreign countries lies in that the patent market has not yet formed a mature market order and only relies on the patentee to regulate the market and lacks market control power,and then attempts to skip the above-mentioned market development law through the legal benefit distribution scheme.On the surface,the patent open license system saves the long process of trial and error in the market,reduces the transaction cost,and improves the transaction mechanism.However,the unsolvable problem is that after the transaction process of patent open license is legalized,the license fee standard and transaction conditions determined by market supply and demand cannot be restored.Only by establishing a close relationship between the determination of license fees and market supply and demand can we maximize the revenue between patentees and licensees.The difference between the market price and other transaction conditions of patent licensing mainly comes from the patentee’s investment in the R & D and dissemination costs of patented technology.The patent open license system not only limits the exclusivity of patent right,but also gives the patentee legal pricing right as compensation.In this case,the patentee’s pricing is bound to maximize their interests.Compared with the public,there is no opportunity for negotiation.Either they are forced to accept high patent license fees or give up the legal authorization of open license.Therefore,from a long-term point of view,there are drawbacks in the arrangement of legal pricing power of patent open license system.On this basis,this chapter analyzes the pricing mechanism of patent open license system from the perspective of patentee.The first section of this chapter mainly introduces the negative impact of patentee’s behavior of disclosing the standard of open license fee when applying for open license and the choice of improvement scheme.Firstly,the patentee’s behavior of disclosing the patent open license fee in advance has a negative impact on the construction of the free competition order of the patent market.On the surface,the legal pricing power of patent open license system improves the pricing efficiency and reduces the transaction cost.Its essence is to reshape the dominant position of the patentee in the transaction process by sacrificing the pricing efficiency,and continue to squeeze and exploit the interests of the relevant public.Secondly,the patent open license system gives the patentee legal pricing right,which is contrary to the relatively closed trend of patent restrictions.For the future optimization path of patent rights,the restrictions on patent rights need to be further restricted,and the relatively closed institutional arrangements should be made clear,so as to prevent the expansion of patent rights in the name of patent rights restrictions.Finally,the existing system arrangement of patent open license system will aggravate the abuse of patent rights.In the process of patent licensing transaction,the patentee is in a strong position with the advantage of information,economy,society and other resources,while the relevant public is in a weak position.The patent open license system promotes the public to obtain the patent license equally by limiting its monopoly advantage.However,the legalization of patent licensing fees deprives the relevant public of the opportunity to negotiate.Even if the relevant public is authorized,it will increase the burden due to the establishment of unequal terms.Therefore,the pricing mode of patent open license system should choose the independent negotiation mechanism,and restore the freedom of contract between the patentee and the relevant public,so as to maximize the interests of both parties.The second section of this chapter mainly introduces that the proper pricing mechanism of patent open license system should meet the requirements of the principle of proportionality.The rationality of the pricing mechanism of patent open license system is examined by the principle of proportionality.The principle of proportionality belongs to the "imperial clause" in public law.Its significance lies in restricting the expansion of public power and infringing on the interests of vulnerable groups.The condition of its application lies in the unequal status of both parties.As for the patent open license system,the legislators restrict the patent right through the public power and apply the principle of proportionality.The determination of the patent open license fee belongs to the contradiction between the patentee and the relevant public.The dominant position of the patentee is similar to the dominant position of the public power,and the principle of proportionality can still be applied.At the same time,the principle of proportionality further limits the restrictions on patent rights by patent open license system to prevent unfair distribution of rights and obligations between patentees and relevant public.Based on the restriction of the principle of proportionality,the restoration of the independent negotiation mechanism of patent open license system is a restriction on the patentee,which is in line with the legislative purpose of the system,and achieves the maximization of the public interest by taking measures to achieve a lower level of damage to the patentee.The third section of this chapter focuses on improving and optimizing the pricing mechanism of patent open license system.The establishment of proper pricing mechanism of patent open license system should take the priority of independent consultation between patentee and relevant public.The difference between the patent open license system with independent negotiation mechanism and ordinary license system is that the patentee shall not refuse any license application from the licensee,and the state provides corresponding guarantee mechanism to facilitate the completion of the transaction.The behavior of refusing to perform the patent open license transaction reached through negotiation will be incorporated into the social credit system to better regulate and constrain the behavior of both parties in the process of implementing the patent open license system.The construction of the social security mechanism of the patent open license system can effectively guarantee the implementation and improvement of the pricing mechanism of independent negotiation of the patent development license system,and promote the construction of the free competition order of the patent market.The fourth chapter of this paper is mainly about the construction of multiple rights protection mechanism of patent open license system,and analyzes the legitimacy of public rights protection of private rights under the system.The main reason why patent open license system fails to play its role in other countries lies in the construction of pricing mechanism and right protection mechanism.The last chapter analyzes the pricing mechanism of patent open license system,which encourages free consultation first,and public power should not interfere with the private rights freedom between the parties.The legal guarantee mechanism of patent open license system for the free consultation between patentees and the public is only administrative mediation and judicial protection.Although administrative mediation is flexible and convenient,it lacks compulsion and deterrence to protect the interests of the parties.As a result,a large number of patent licensing disputes pour into the judicial system,resulting in a waste of judicial resources.At the same time,due to the long period of judicial protection and the rapid development of technology update,the parties often choose to give up the use of patented technology when facing patent open license disputes.Therefore,it is of great significance for the effective operation of patent open license system to improve the legal protection mechanism,put the convenient and fast administrative protection in front,and build a "multiple" protection mode.The first section of this chapter mainly talks about the dilemma of the realization of private rights in the patent open license system.Among them,the root of the dilemma lies in whether the intervention of public rights protection excessively interferes with the patent licensing behavior of private rights.Although the patent open license system limits the patent right to a certain extent,the patentee is still in a strong position in the implementation process of the system,while the licensee is in a relatively weak position.The legal protection mechanism of patent open license system is not perfect,which will cause the Licensee’s license right to be threatened at any time.If the implementation of multiple rights protection mechanism to effectively protect the rights of vulnerable groups,then the rights of strong groups can also be fully protected.Therefore,this chapter mainly analyzes the construction of multiple rights protection mechanism of patent open license system,and starts with the dilemma of the realization of private rights in reality.As mentioned above,without the administrative protection front,the rights and interests of the parties can not be effectively guaranteed.But will administrative protection,as the exercise of public power,interfere with and hinder the freedom of private rights? In other words,whether administrative protection is reasonable in the patent opening license system becomes the dilemma of the parties in the patent opening license dispute,and the root of the dispute lies in the rationality of public power intervention in the field of private rights.The negative view is that the right to open license to use patent belongs to the property right,creditor’s right,usufruct right,usufruct intellectual property right and other private rights.It should be dominated by free negotiation between the parties.The judicial protection has enough guarantee that there is no excessive intervention of public power,which is the main reason for the opposition to the intervention of administrative protection.The positive view is that patent right belongs to special property right,its particularity is that it can be used by many people without conflict of rights by means of license.It is the value orientation of patent license right to promote the surge of social public interest,and the value orientation of administrative protection is to protect public interest.Therefore,the patent open license system is reasonable to apply the multiple protection modes of administrative protection and judicial protection.Therefore,the root of the dilemma of the right holder is that there are different opinions on the degree of intervention in the field of private rights by the administrative public power.The rationality of the exercise of public power will be examined by the principle of proportion in the following section,so as to achieve the effect of settling disputes.The second section of this chapter mainly focuses on the proportionate examination and the determination of the examination standard of the application of multiple rights protection mechanism in the patent open license system.The essence of the proportionate examination of the multi rights guarantee mechanism of patent open license system is the proportionate examination of administrative protection.First,on the purpose appropriateness review.There are two ways to review the appropriateness: positive and reverse.Positive research and judgment is the purpose of exploring the true,decisive and dominant position of legislators or policy makers through their expressing intention.The reverse study and judgment is to derive the true purpose of legislators through the result of the implementation of the policy.The real purpose of administrative protection of patent open license system is to involve public power in patent market,and realize social sharing of technical information by limiting the specificity of patent right.In this process,when unfair distribution of interests occurs,public power intervenes and interferes with it,redistributing the interests of the parties,Thus,it can promote the full implementation of patent opening license system and regulate the order of patent licensing market.Secondly,the review of means.The main purpose of this paper is to examine the appropriate and necessary means of the complementary and complementary means of administrative protection and judicial protection in the multi rights protection mechanism.The appropriateness of means is mainly analyzed based on the basic national conditions of China and relevant official data.It is concluded that patent open license disputes generally show the characteristics of simple structure,prominent contradictions and clear organization.This is called low-quality source of case.The administrative protection solves disputes before they are blocked from entering the judicial process,and improves the efficiency of dispute resolution.The necessity of means is to examine the necessity of the public power intervention to maintain the patent licensing market order,the legislator should find the minimum damage to the patent market competition order,and reduce the restrictions on the free competition mechanism of the market by means of public power control to the minimum.Finally,the equilibrium review of "purpose means".Administrative protection and judicial protection cooperate to examine the balance of interests of the parties in the implementation of patent opening license system.Administrative protection is preceded by the cooperation of judicial protection to prevent the abuse of patent right by the strong position of patentee,timely and efficient protection of the legitimate rights and interests of the parties,the smooth transformation of patent technology,the realization of social sharing of technical information,and the innovation of technology,and the protection of social public interest.Therefore,the application of multi rights protection mechanism in patent opening license system not only effectively alleviates the dilemma of the parties,but also promotes the wide application of patent opening license system,and helps legislators realize the intention of controlling patent licensing market.The third section of this chapter mainly focuses on the improvement of the objection procedure and dispute resolution mechanism of patent open license system.The objection procedure of patent opening license system can allow any stakeholders to raise objections in the process of implementing the patent opening license system to the administrative organ.The objection procedure can effectively reduce the entry threshold of patent opening license system and encourage more patents to implement patent opening license system.If there is a patent that does not conform to the law or is not applicable to the patent opening license system,any person in the public will take the initiative to raise an objection for administrative treatment.The dispute settlement mechanism of patent open license system implements multiple protection modes,effectively guaranteeing the legitimate rights and interests of the parties from infringement.If a dispute occurs during the process of implementing patent opening license,the parties shall negotiate and solve the dispute first,and if the negotiation fails,the dispute shall be settled by administrative mediation.The administrative organs of our country can choose to set up special administrative mediation centers to deal with the conflicts and disputes caused by the failure of negotiation between the parties.In case of failure of negotiation or mediation,the parties may seek administrative organ to make administrative decision on the dispute and the administrative decision shall deal with the dispute ahead of time.If the parties are not satisfied with the results of the administrative... |
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