Research On The Improvement Of Patent Open Licensing Syste

In recent years,China’s effective patent licensing rate has been declining year by year.With the economic downturn,this realistic dilemma calls for the birth of a system that can effectively improve the patent licensing rate.From the perspective of patent itself,in recent decades,there have been adverse phenomena such as "anti-commons tragedy","patent jungle" and "patent hijacking",which hinder the normal transaction of patent.Most scholars believe that this is caused by the high transaction cost caused by the strong exclusivity of patent rights.How to reduce the exclusivity of patent so as to ensure the smooth progress of patent licensing has always been the focus of academic attention.Patent open license is a system in which the patentee voluntarily weakens the exclusive right of his patent so that his patent can be licensed out more.At present,this system has been adopted by many countries and has been proved to be effective in improving the patent licensing rate by overseas practices.Since the fourth amendment of the Patent Law in 2014,legislators have tried to introduce open patent licensing,and the academic research on this system has just begun to advance.Therefore,there are not many high-quality research results so far.At present,there are some deficiencies in the newly promulgated Patent Law and the public Implementation Rules of the Patent Law,which are not enough to clarify the legal issues involved in the system and solve the problems that may occur in the implementation process of the system.This paper makes an in-depth analysis of the theory of the patent opening license system,and discusses the problems and deficiencies of the relevant provisions of the patent opening license system and puts forward solutions to develop and improve the patent opening license system.The first chapter of this paper is divided into three parts.The first part analyzes the patent opening license system from jurisprudence and law economics.The second part analyzes the nature of the patent opening license system according to its characteristics,and then puts it in the framework of the Patent Law for system positioning,comparative study and system interpretation,which provides a theoretical basis for the construction of the following legal rules.The third part analyzes the existing problems of the patent opening license system,including the unclear nature of the patent opening license statement,the insufficiency of the termination rules of the patent opening license,and the lack of relevant injunctive relief rules.The second chapter of this paper is divided into two parts.The second chapter mainly clarifies the nature of the patent opening license statement.This paper introduces the conflicts and deficiencies of existing related theories,introduces the theory of unilateral legal act,and clarifies the legal effect.Makes the patentee have to meet the conditions of the third person licensed patent common obligation,even if the patentee and potential licensee cannot open according to the patent license notice the content of the agreement,also have to bear the negotiations with potential licensee in good faith obligations,and under certain conditions to allow the intervention of public power organizations mediation or referee.The third chapter improves the termination rules of open patent license.This chapter points out the inadequacies of the existing termination rules and explores different situations in which an open patent license can be terminated.This chapter discusses the "patent law" not the restriction on the patentee exercise of the right to withdraw the appropriateness,patent licensee of one party is not effective implementation,interrupt patent license fee,whether or not to pay the licensing fee required open can lead to a patent licensing contract termination,to distinguish the different situation to discuss the effectiveness of the patent open licenses that,Then the legal termination rules and legal consequences of open license contract are improved.Finally,it is suggested to enlarge the patent co-owner’s rights of patent opening license.The fourth chapter constructs the rules of open license injunctive relief.This paper analyzes the practical significance of injunctive relief for patent opening license,and it cannot deny the right to request injunctive relief because of patent opening license.At the same time,compared with the relevant provisions of other licenses,combined with the characteristics of open license,the subject of patent injunctive relief should be demonstrated.Finally,the entity conditions of patent opening license system are constructed,including examination conditions and special provisions.