Research On The Relief System Of Compulsory Patent License

Compulsory patent license itself is a "double-edged sword",and its implementation is often based on the protection of the public interest of the society,so it will inevitably limit the legal rights of the patentee.However,if you overemphasize the social attributes of patents while ignoring the role of patents in the protection of private rights,it will inevitably lead to overcorrection.Therefore,how to counter-restrict the compulsory license system itself is not only an effective means to relieve the legitimate rights and interests of the patentee,but also a problem that the compulsory license system must solve.As we all know,my country’s patent system started late and the related system is not perfect.Especially in the patent compulsory license,the current legislation only makes some principle provisions,which leads to many problems in how to regulate the implementation of compulsory license and provide relief to the patentee.First of all,in terms of the issue of compulsory licenses,the current patent law stipulates four situations: ordinary compulsory license,compulsory license for abuse of rights,compulsory license for public interest,and compulsory license for dependence.However,there is a lack of clear provisions in the legislation on how to determine each situation,which leads to the lack of legal basis for the patentee to defend the improper implementation of the compulsory license.Secondly,the legislation stipulates that the two parties shall negotiate for the use of compulsory licenses.If the negotiation fails,it shall be submitted to the patent administration department for a ruling.However,the relevant legislation has not clearly stipulated how the patent administration department calculates the royalties.Finally,the follow-up safeguard measures for the right holder after the implementation of the compulsory patent license play a pivotal role in preventing the improper implementation of the compulsory license and timely relieving the legal rights of the patent holder.However,in my country’s current legislation,there is a lack of clear provisions on the circumstances of the termination of the license after the implementation of the compulsory patent license,the effective time of the termination,and the accountability of damages after the termination of the license.Based on this,this article first adopts the legal analysis method,combined with relevant legislation,to specifically analyze the problems existing in the patent compulsory license relief system in my country.Then,using the comparative research analysis method,aiming at the problems in the legislation,on the basis of detailed analysis and comparison of the legislation outside the territory,we can learn useful experience from it.Finally,in view of the problems existing in the remedy of my country’s compulsory patent license,this article proposes to further clarify the specific issuance of the compulsory license to improve the defense remedy before the issuance of the compulsory license.In view of the difficulty in determining the royalties for compulsory patent licenses,the author creatively proposed four different royalties calculation methods based on the analysis of the characteristics of the four types of compulsory licenses.Regarding the lack of safeguard measures after the implementation of the compulsory patent license,this article clarifies the termination of the compulsory license and the specific effective time,and adopts punitive damages for the investigation of the liability after the termination of the license to further improve the legal remedies for the termination of the compulsory license.This article hopes to improve the defense remedy before the issuance of the compulsory patent license,clarify the remedy for the determination of the license fee,and establish and improve the legal remedy for the termination of the compulsory license,so as to protect the patentee’s legal rights and build a complete set of rights relief system.In this way,the interests of patentees and the public interests of society are balanced.In the end,a good atmosphere of encouraging invention and creation is formed in the whole society,so that the achievements of scientific and technological development can be shared by all members of society.