Patent Open Licensing System

The implementation and application of patent is an important way to realize the value of patent.At present,there are some problems in the practice of our country,such as low efficiency of patent technology transformation,low degree of implementation and application and so on.The fourth revision of the Patent Law draws lessons from foreign experience and introduces license of right.License of right means that the patentee makes a declaration of open license to the patent administration department according to his will,indicating that he is willing to license anyone to implement his patent,and anyone can request the patent to be implemented from the patentee.The system is voluntary,open and fair.The value of license of right is as follows: first,it provides an information docking mechanism for both supply and demand of patent technology,which is convenient for both parties to obtain patent information,and solves the problem of information asymmetry of patent technology to a certain extent;second,reduce patent licensing transaction costs,legal risk and improve efficiency.This paper mainly studies the content of license of right in the fourth revision of China’s Patent Law.At the present stage,under the background of building a powerful country with intellectual property rights,the introduction of license of right is an important measure to improve the level of patent application in our country.However,it should still be noted that license of right in the revision of the Patent Law is not perfect,and some specific contents can not effectively promote the implementation and application of patents.Therefore,the purpose of this paper is to start from these problems and try to improve the content of China’s license of right.This paper is divided into four chapters.The first chapter puts forward the problems existing in the content of license of right in the fourth revision of the Patent Law.First of all,it introduces the connotation and value of license of right.Secondly,it introduces the background of the construction of license of right in our country,and sorts out the contents of license of right in the fourth revision of China’s Patent Law.Then it points out the shortcomings of China’s license of right,including the implementation conditions of license of right,the examination and service functions of patent administrative departments,and the relief of infringement disputes during the period of license of right.It will be discussed in the following three chapters.The second chapter studies the improvement of the implementation conditions of license of right By combing the legal provisions and practice of license of right in foreign countries,the extraterritorial countries give the patentee and the potential licensee the right to negotiate patent royalties in license of right.if the two parties are unable to reach an agreement,they may request the patent administration department or the court to make a ruling;the potential licensee shall obtain the right to enforce license of right after notifying the patentee.In patent licensing,the patentee is allowed to terminate the patent enforcement right under specific conditions.The implementation conditions of license of right in foreign countries help to reduce the cost of negotiation and negotiation,and promote the entry into force and implementation of license of right contract.Therefore,this paper suggests that our country should improve the implementation conditions of license of right:first,introduce the negotiation link of license of right to respect the autonomy of both parties;second,simplify the effective conditions of license of right contract,the potential licensee notifies the patentee and determines the patent royalty to obtain the patent enforcement right;third,increase the right of the patentee to terminate the enforcement right.The third chapter discusses the function of patent administration department in license of right.In the countries that implement license of right outside the territory,their patent administrative departments have the functions of examining,announcing,establishing an license of right information service platform and adjudicating and determining patent royalties.These functions of the patent administrative department are conducive to promoting the effective operation of license of right.China’s license of right should add or supplement the following functions of the patent administrative department: first,the patent administrative department should conduct formal examination of license of right;second,the patent administrative department should undertake the construction of information service platform,the provision of standardized forms and other service functions;Third,start the administrative adjudication procedure on the patent license fee at the request of the parties.The fourth chapter discusses the relief means of tort in license of right.Britain and South Africa stipulate that the patentee can file a temporary injunction before suing when the infringer is unwilling to implement the patent under the condition of license of right,and require the infringer to compensate twice the patent royalty for the loss.at the same time,it also gives the licensee litigation status under certain conditions.License of right in the revision of China’s patent law has no clear provisions on the relief of patent infringement.License of right should stipulate that when the open license infringes,if the infringer refuses to implement the patent under the conditions of license of right,the patentee is allowed to apply for a temporary injunction before litigation and claim damages;at the same time,the patent licensee is conditionally qualified to sue.