Analysis Of The Prohibiting Duplicate Authorization Principle

The patent right refers to the National Patent Administrative Organ grants the patentee an exclusive right to his invention within the specified time according to the law. The patent right has proprietary, timing and regional, and the proprietary is the most significant characteristic of the patent right. Duplicate authorization is not only contrary to the proprietary of patent, more important is the destruction of the balance o mechanism f interests between the patentee and the public, and even undermines the credibility of the patent system. The prohibiting duplicate authorization principle is arisen out of the proprietary of patent, and as the basic principle of patent system in many countries. From the first patent law enacted in1984to now, it has gone through three revisions, and the prohibiting duplicate authorization principle tends to improve gradually. The article9of current patent law:"The identical invention on-creation can only be granted to a patent right." this provision enhances the legal level of the prohibiting duplicate authorization principle, puts the prohibiting duplicate authorization principle in a more important position. Although the three revisions of the patent law made the prohibiting duplicate authorization principle greatly improved, the phenomenon of patent duplicate authorization still in large numbers in our patent practices.This article combines with the knowledge of jurisprudence and comparative law, and uses of value analysis, comparative analysis, induction, deduction and other methods to study. This paper tries to begin with the basic theory of the prohibiting duplicate authorization principle, introduces the evolution of the principle, analyses several focus involved in Shu Xuezhang case, combines with the relevant provisions of the principle in foreign patent system, against to the shortages of the principle in our patent system, proposes some reference solutions.This article is divided into three main parts. The first part is an overview of the basic theory of the prohibiting duplicate authorization principle, from the meaning of the patent duplicate-authorization, the conflict over and the necessity of the prohibition of duplicate-authorization three aspects introduces the legal connotation of the prohibition of duplicate-authorization, from the legitimacy and value orientation of the prohibiting duplicate authorization principle and the discrimination of the prohibiting duplicate authorization principle and relevant principles three aspects makes a legal analysis about the prohibiting duplicate authorization principle. The second part summarizes the evolution of the prohibiting duplicate authorization principle of China’s Patent Law, starts with the1984Patent Law, gradually introduces the revision of the prohibiting duplicate authorization principle in1992Patent Law,2000Patent Law and2008Patent Law, describes several controversial focus combined with Shu Xuezhang case. The third part introduces the relevant provisions of the prohibiting duplicate authorization principle of other countries at the beginning, and then analyses the shortages of the prohibiting duplicate authorization principle in our country, at last proposes suggestions for improvement against the existing problems of the prohibiting duplicate authorization principle.