The Research On Open Patent License System In China

The diversification of patent rights and the virtual possession of patents determine th at the patent implementation license occupies an important position in the patent impleme ntation mode.The patent implementation license has been revised many times with the r evision of the Patent Law,from active to negative sharing,and the modification is effect ive when the patent implementation contract is established.In order to reduce administrat ive intervention,etc.,the patent implementation licensing regulations seem to have reache d the end where the legal system can be adjusted.After years of development,the numb er of patent applications and patent grants in China has grown steadily,laying a good fo undation for patent implementation.However,the patent licensing rate has not increased synchronously with the number of patents,and the contribution of patent licensing to pro mote the patent implementation rate is very small.To improve the patent licensing rate,the fourth amendment to the Patent Law proposed the countermeasures for patent open li censing.Researching the academic literature and the fourth revision of the published text of the Patent Law has not yet reached a consensus on the construction of the patent op en licensing system.Studying the patent open licensing helps to further fully understand the system and provide suggestions for legislation.The first part of this article is an overview of the patent licensing system.Patent op en license is a way for the patentee to exercise the right of disposition,which means th at the patentee declares to the Patent Office that he wishes others to implement the pate nt,and the licensee should pay the consideration.The system seamlessly connects the pa tentee and the licensee.It can be seen that the patent open licensing system is legally pr esumed,voluntary,social,efficient,and hearing.Patent open license is a special kind of voluntary implementation license.The patent office conducts a formal examination of the patent open license declaration,so the patent open license is characterized as an admini strative matter,which is an administrative management method for the patent office to pr omote patent implementation.The function of patent open license gradually evolves to ex pand the scope of information disclosure and spread,realize the dynamic balance of interests,and promote market competition.After having a clear understanding of patent open license,distinguish between patent open license,patent implementation license and patent compulsory license,and further delineate the boundary of patent open license.The second part of this article is to study the necessity and feasibility of patent ope n license system.By analyzing the patent open licensing system,it can be seen that it a ctively expressed its willingness to license to reduce the cost of patent transactions;integ rating China’s patent transaction data,the patent licensing willingness can improve the su ccess rate of patent transactions after the announcement of the Patent Office,and also pr ovide a source of business for patent transaction intermediaries;The internationalization o f patent rights makes it necessary for China to draw on the provisions of patent open li censing in multilateral international treaties to provide multiple ways to attract foreign tec hnology.China also has the feasible conditions for the patent open licensing system.The content of China’s voluntary patent licensing has gradually expanded to reduce the burd en on the parties.Patent open licensing has inherited the trend of continuous revision of voluntary licensing;China’s patent licensing information platform not only meets online search conditions,but also has independence.It is not a platform co-located with other p atent information,which provides technical conditions for building a patent open license database;the number of Chinese patents ranks in the forefront of the world,and the pro portion of unimplemented patents as a technical reserve accounts for a lot.Patent open li censing provides a large and reliable basis for transactions;patent owners expect the gov ernment to provide strong administrative protection and protection of patent rights,paving the way for a patent open licensing system with administrative power running through i t,thus simplifying patent open licensing The implementation procedure and the fee for th e use of administrative awards provide the basis.The third part is to compare the patent open license system in the extra-territory an d the three amendments to the Patent Law of China,to factorize the patent open license system,and to compare the corresponding provisions of the extra-territorial and our cou ntry one by one;The content,dispute resolution and annual fee preferential measures are grouped into different categories,compared with the provisions in the amendments to th e Patent Law of our country,and further analysis of the development of the provisions under the national conditions of China’s patents,and then pointed out that the subject is entitled to declare the patent open license subject qualification The patent open database should be expanded and established by the Patent Office,but it should be stipulated thatin the corresponding regulations,the annual patent fee discount and the prohibition of p rohibition do not have the role of encouraging patent owners to declare open licenses in China.This content encourages the licensee to obtain an open license and grants the rig ht to sue to safeguard his interests.Then summarize the enlightenment for the constructi on of China’s patent open license system.China’s patent open license should appropriatel y simplify the implementation,acquisition and dispute relief procedures of patent open li cense;improve the efficiency of patent holders in obtaining royalties and ensure that lice nsees quickly obtain patent open licenses To encourage the implementation of patent ope n licensing system;on the basis of promoting the implementation and utilization of paten ts,the autonomy of respecting the exercise of private rights of patents should be penetrat ed into all links of the patent open licensing system;the high cost of the patent evaluati on report should be constrained The mechanism prevents garbage patents from flooding t he consumer market and appropriately controls the quality of patent open licensing techn ologies.The fourth part specifically constructs the patent open license system in China’s Pat ent Law,stating that the subject can freely determine the royalties with reference to the six standards and open terms for contract filing;the licensee notifies the Patent Office to obtain the patent open license to protect the patent open license Fast implementation;th e use of administrative rulings to protect the implementation of royalties as an incentive for the patentee to declare;the qualification of invalid patents based on honesty and trus tworthiness;granting the licensee as a qualified plaintiff.