Research On Patent Open License System In China

In order to improve the implementation rate of patent transformation,promote the transformation of scientific and technological achievements,and reduce the transaction cost of patent license,China’s newly revised Patent Law introduced the patent open license system.This system has long been practiced outside China,and there are some differences in the provisions of this system in various countries,but the concept and characteristics of open patent license are the same.An open patent license is a declaration of open license made by the patentee voluntarily to permit others to use the patent.It states that after examination and announcement,anyone who meets the conditions can obtain the right to use the patent,which belongs to voluntary license.The value goal of open patent licensing system is to unblock the information of supply and demand in the patent trading market,reduce the transaction cost of patent licensing,and improve the implementation rate of patent transformation.The rule design of patent open licensing system should be based on resource allocation theory and interest balance theory,combined with the characteristics of patent system,taking into account the rights and obligations of patentee and licensee,and on this basis,maintaining the principle of autonomy of will in patent licensing contract.At present,the part of the rules in the system design is not in conformity with its theoretical basis,there are open patent license notice Qian Zhi Xing conditions is missing,the patentee determined by ignoring the patent licensing fees standard way statement essence characteristics of open licenses,licensee cannot reflect the condition of carrying out open licenses the patent patent the superiority of open licenses,The imperfect rules for the withdrawal of the open license declaration and the unclear conditions for the application of the temporary injunction will affect the implementation efficiency of the open license system in China.Through the method of comparative study,this paper also sorts out the regulations of open patent licensing system in the United Kingdom,Germany,France,Spain and Russia in detail,analyzes the implementation status of open patent licensing system in various countries,and summarizes the advantages of open patent licensing system in various countries,in order to provide inspiration for the improvement of open patent licensing system in China.In view of the national conditions of low patent conversion rate in China,based on the theoretical basis and comparative analysis of patent open license system,the author puts forward corresponding and perfect ideas and suggestions for the problems existing in the patent open license system: the patent administration department should take the initiative and passive way to audit the preconditions of open license statement;Monitor the standard of licensing fees for open licensing statements based on the agreed patent licensing fees;To allow the potential implementer and the patentee to exploit the patent after reaching an agreement on the licensing fee;The amount of preferential annual fee to be paid to the patentee who withholds the open license declaration according to the circumstances;Clarify the calculation method of patent infringement compensation and do not issue temporary injunction to qualified infringer.Although there are still some flaws in the design of China’s patent open licensing system,the subsequent revision of the Implementation Rules of the Patent Law should continue to refine and improve the corresponding rules,and the system will effectively improve the status quo of China’s patent implementation.