Research On Patent Open License System In China

The patent open licensing system is a new system added to the current Patent Law after the fourth amendment in October 2020,which is a special licensing model whereby the patent owner declares to the patent administration department that it allows an unspecified third party to license the implementation of its patent,and the third party is granted the right to license the implementation of the patent upon written notice and payment of the patent license fee.The patent open licensing system aims to solve the current problems of information asymmetry between the supply and demand sides of patents and high patent transaction costs,and provides a new path for China to improve the implementation and conversion rates of patents.The Patent Law has briefly stipulated the basic licensing process of the patent open licensing system,but there are still many issues that have not yet been fully appreciated and discussed,which also affect the implementation of the system.In the current context of China’s in-depth promotion of the construction of a strong IPR country and the vigorous promotion of IPR operations,it is urgent to strengthen the study of this system.This dissertation will start from the current situation and problems of China’s patent open licensing system,analyses the regulations and implementation experience of patent open licensing systems in some overseas countries,and provide countermeasures and suggestions for the improvement of China’s patent open licensing system by taking into account China’s national conditions.This dissertation is divided into the following four chapters.The first chapter is an overview of the patent open licensing system.This chapter explains the connotation of the patent open licensing system,defines the essence of the patent open licensing system and clarifies its basic characteristics of voluntariness,openness and fairness.This chapter also reveals the justification for the introduction of an open licensing system in China through different levels of analysis,such as jurisprudence,economics,social reality and national strategy.The second chapter deals with the shortcomings of the patent open licensing system in China.This chapter summarizes the problems in the design of China’s patent open licensing system through a specific analysis of the provisions of the Patent Law,namely the unclear positioning of the functions of patent administration departments,the lack of implementation paths for the policy of annual patent fee waiver,and the neglect of the existing system to safeguard the remedy mechanism for patent infringement.The third chapter provides a comparison of patent open licensing systems in overseas countries and its inspiration.Through a comparative analysis of the provisions and implementation experience of their patent open licensing systems,this chapter summarizes the advantages and disadvantages of the practices of the above-mentioned countries in terms of patent administrative departments,incentives for annual fee remission,withdrawal of open licensing declarations and patent infringement remedies.The fourth chapter provides suggestions for improving the patent open licensing system in China.Based on China’s national conditions and the practical experience of other countries,this chapter proposes to clarify the functions of the patent administration department,formulate a flexible and differentiated annual fee reduction mechanism and set up a special patent infringement remedy mechanism,so as to stimulate and guarantee the smooth implementation of the patent open licensing system.