Study On Chinese Patent License Of Right

The license of right system is a new introduced in the forth amendment to the Patent Law of China.Its purpose is to solve the asymmetry of patent information and alleviate the problem of the low permit rate of patent implementation.This system is a new product in the process of the reform of the patent licensing system.By setting up a patent information platform,it can strengthen the expansion of patents in the form of licensing and encourage patentee to openly license patents to society in order to reduce the cost of patent licensing transactions and promote the transformation of patent technology achievements.Neither the academic nor the practical circles of our country have studied the system of license of right.This paper analyzes the relevant provisions of the license of the right system of Patent Law Amendment draft(submitted draft).Based on its deficiencies,this paper puts forward the perfect idea of establishing the system of licensing.This paper is divided into five parts:The first part is "Overview of the system of the license of right system".This paper analyzes the definition,characteristics and comparison with the relevant patent licensing models.Through a comprehensive investigation of the views of Chinese scholars on the connotation and extension of the concept of "license of right system",Summing up the license of right system in our country is that after the right holder has obtained the patent authorization,he or she voluntarily submits a declaration in writing to the patent administration department under the State Council that he or she is willing to license any person to carry out his patent and confirm the explicitly license fees.The administrative department for patent under the State Council shall make a public announcement that during the licensing period of a patent,any person who is willing to carry out the patented technology in accordance with the conditions of the license shall write in a letter.The patentee can therefore get the annual fee reduction and the patent information free of charge.At the same time,the basic starting point is the concept of license of right system.It can be analyzed that the system of licensing has five characteristics: voluntary,legal,open,fair and economic.As a thriving mode ofpatent licensing,its content and mode of implementation are still slightly different from traditional patent licensing.Distinguishing between license of right system and voluntary license,compulsory license,statutory license,it is clear that license of right system is an independent patent license model.It is certainly true that the establishment is helpful to deepen the understanding and the research to the license of right system.The second part is "the necessity of the license of right system".The theoretical motivation of establishing the license of right system is the basis and fundamental of protecting and promoting the implementation of patent technology.Therefore,this part is based on the principle of balance of interests,incentive theory and efficiency rules.This paper interprets the necessity of establishing the license of right system in our country.According to the principle of balance of interests,considering the mode of patent license,the general voluntary license goes directly to compulsory license and statutory license.This patent system seems to be unstable.license of right system combines the advantages of voluntary licensing,compulsory licensing and statutory licensing while avoiding their disadvantages.As a transitional mode of voluntary licensing and compulsory licensing,the system can balance the interests of innovators and commercial needs and then generate the interests of the whole society.From the perspective of incentive theory,the patent system not only needs to stimulate the creation of invention,but also needs to transform invention into actual productivity.The establishment of patent licensing system is an effective means to stimulate the subsequent commercial development of patent.It can innovate of patent operation system in a relatively soft way.It may not the same as the compulsory license and voluntary license.The license of right system can not only stimulate patents to put their inventions into the market to obtain the cost but also stimulate the innovation ability to the whole society.According to the efficient rules,this article summarizes the recent ten years of the rate of patent implementation in China,the survey shows that the universities,as one of China's main force of innovation,may have the lowest rate and its operations are not very well.Setting up the industry characteristics of national patent operation and industrial service platform,it canprovide a variety of technical achievement for an effective way of trading,which is in line with the interpretation of the efficiency of Law and Economics:in accordance with the voluntary Where trading transfers resources,we believe that such transfers involve efficiency growth.The third part is "Extraterritorial investigation of the system of licensing right".Although in order to create a good legal environment for the application of patents almost countries have established an license of right system,these countries have different aims of designing the system.Therefore,there are differences in the design of the licensing right system in various countries.The UK Patent Act of 1977 provides for a more detailed regulation of the license of right system and it plays an important role in practice.The most distinctive feature of the patent licensing system in Britain is that it is closely related to the compulsory licensing system,which means the license of right system derives from the compulsory patent licensing system.Under certain conditions in the British patent licensing system,the license of right mode can be directed to the compulsory license mode.Secondly,during the period of patent license of right,it clearly states that the director of the Patent Office in the United Kingdom may require the patentee to convert the general license into a license of right before applying for a license of right registration notice.It is more effective for the patentee to manage the patent.The licensing system in Britain is unique,we cannot deny the independent value of its existence.Moreover,the establishment of the licensing system in all countries of the world is based on the licensing theory and the practical experience.In 1980,the German Patent Act reflects the distinguished feature of the Germany license of right system,the whole process of permission will have the intervention of administrative departments.It is certainly true that the application,registration or even the licensing of the implementation process are permeated with the intervention of the country.The specific process of German patent licensing fees of course has a distinct representation.For example,the German licensing fees could be determined directly by officer of patent and Trademark Bureau without the negotiation of licensors and Licensees.With regard to the system of license of right,Thailand or Malaysia only have the outline of the patent license instead of having a detailed description of the content of the specific system.It is worth noting that,the implementation of license of right in Thailand and Malaysia reflects the rigour and fairness of the administrative procedures.The National PatentOffice is involved in the whole process of carrying out the license of right,especially in Malaysia,it has strict procedural requirements and conditions for the specific registration and the license of right contracts.The forth part is "discussion on the system of License of right" Although the preliminary provisions in the draft submitted for the license of right system include application,registration,provisional injunction prior to litigation and withdrawal system,the nature of the license of right declaration,the patent evaluation report and infringement relief are still disputed.Firstly,whether the declaration of patent license of right is an offer or an offer invitation in the sense of contract law.Secondly,in an license application,whether the evaluation report on the patent of utility model and design is applicable;Thirdly,whether our country should forbid the temporary injunction.Finally,whether the defendant can claim an license of right and the application of the invalidation of the patent at the same time.There are some differences between the above problems.This paper attempts to understand the system of license of right.Then it can help to establish the specific clause of the licensing system and clarify the position of the license of right system in the whole patent system.The fifth part is "Chinese license of right system construction”.Through the analysis of the extraterritorial legislation and the related disputes,we can find that provisions are not perfect and lack the practical experience.And then this paper may give some suggestions about the construction of our country's license of right system from the application,approval procedures,implementation,tort relief,revocation and other aspects.From then on,we may promote patent achievements transformation implementation.First of all,on the course to the application and registration stage.In order to ensure the patent right without any drawbacks,this article believes the application conditions should be adjusted.Of course,the patent right shall not be allowed to the exclusive licence as a prerequisite for granting an license of right registration,License of right charges and other elements shall be confirmed after the patentee has obtained an license registration.The patent evaluation report shall be used as a condition for the application of an license of right for utility model and designpatents.And the provisions on the subject of the patent evaluation report should be unified with the existing law.In the process of the licensing application,the subject of the patent evaluation report is the patentee.At the implementation stage of the patent license,The subject of the request for correction of the patent evaluation report may be either the patentee or the user.During the period of the patentee obtained the patent license,by halving the annual patent fee to encourage and stimulate patentee to march the market.It is clear that the potential licensee will submit the licence fee and meet other requirements,The right holder may not deny permission for any reason in order to limit the exclusive rights of the patentee.We should ensure patent license mode so that we can promote the patent implement management and improve the efficiency of patent administration.At the tort relief level,in some conditions,the licensee should also have the right of action when the patent right holder may not sue the patent infringe.The patent law of our country(the forth amended vision)do not make provisions for infringement damage during the licensing period.So in patent infringement litigation,the people's court may determine the amount of compensation according to factors such as the circumstances,the scale,the consequence of the damage and so on.Meanwhile,in our country,neither the license of right system provides for the subject to withdraw the license declaration,nor it can give the conditions for the revocation of the license.The subject of the revocation of the license declaration for our country is the patentee,which meets the patent right as a private right.The patentee has the right of free disposition.Our country may consider the rules of the united kingdom,we can restrict the withdraw of the license in order to promote the implementation of patent conversion.