Study On Legal Issues Related To Temporary Protection Of Patent Application

China has adopted the patent examination system of early disclosure and delayed review to make disclosure of patent applications a necessary procedure for patent authorization.However,patent applications in China can only be granted exclusive protection of patent rights after authorization.The “vacuum period” right to the period of disclosure to authorization then occurred.The length of the “vacuum period” of this right may be as long as one to two years depending on the duration of the patent examination.In order to provide protection to applicants with a “vacuum period” of rights,Article 13 of the “Patent Law” of China stipulates provisional protection for applicants,that is,a patent applicant may request a third party to implement its patent application technology during the temporary protection period to pay.Appropriate usage fee.However,this provision is too general,simple,and provability is not strong,is not conducive to the protection of the patent applicant’s rights.In view of this,this article based on the case cited problems,through four parts to fully explain the temporary protection of the invention patent application:The first part,the justification of the temporary protection of the invention patent application.This part demonstrates the legitimacy of the temporary protection of invention patent applications from two aspects: the principle of balance of interests and the right to return the improper benefit.The second part,the status qua and inadequacy of the legislation for the temporary protection of invention patent applications.This section first briefly described the status quo of the provisional protection of invention patent applications in China,and then introduced the conditions for the provisional protection of invention patent applications in China.Finally,it summarized the shortcomings of China’s invention patent applications for temporary protection.There are three main points: 1.Missing notifications or warnings for pre-programs;2.Temporary protection measures are in name only;3.It is difficult to determine the amount of temporary protection of the appropriate user fee;4.The nature of the continuous implementation of the act is difficult to determine.The third part,institutional experience in applying for temporary protection of foreign invention patents.This section mainly introduces the provisions of the PatentCooperation Treaty,the European Patent Convention,Japan,and the United States on the provisional protection system,and summarizes the useful experience for China.Part IV,the improvement of China’s invention patent application for temporary protection system.The proposed improvement measures mainly include four: 1.The applicant for the invention patent is required to give a notice or warning to the implementer;2.The applicant is allowed to apply for a temporary injunction to the court under certain conditions,prohibiting the third party from implementing the temporary protection period.It’s patent application technology;3.Clearly determine the nature of the continuation of the implementation of the behavior;4.Determine a reasonable temporary protection fee standards,the user’s subjective good and evil as a criterion,and then establish a statutory compensation standard When the user’s subjective good and evil cannot be distinguished,use it as a pocket item.The reasonable use fee can be determined to some extent.Finally,based on the article’s measures for perfecting the temporary protection system,some legislative proposals are proposed for China’s temporary protection system.Finally,the article reviews and summarizes the main content of this article in the conclusion,and puts forward relevant legislative proposals on this basis.