Research On The Determination Of Appropriate Expenses In The Patent Temporary Protection

China’s invention patent examination is "early disclosure and delayed examination".Due to the uncertainty of the examination result between the date of disclosure and grant,the applicant cannot prohibit the implementation by others according to the patent right.So China has given the applicant a right to request the implementer to pay the fee through the temporary protection system.However,as to the rules for determining the fees,the judicial interpretation adopts the method of determining the fees by reference to the license fees.But this standard is too low,resulting in insufficient protection for the applicant.And,it is rarely applied in practice due to some objective reasons.According to the theory of justification of patent,the applicant has a property claim to the technical solution based on his intellectual creation process,and the interests of the applicant should be reasonably protected for the purpose of inspiring more inventions.Therefore,a negative evaluation within the patent law should be given to the implementer who obtains information through the public application documents.However,the nature of the expense will inevitably bring different effects on the design of the appropriate expense determination rule.When determining appropriate expenses,the nature of the expenses will have different impacts on the design of the rules.In the theoretical community,there are two viewpoints,namely,unjust enrichment restitution and infringement compensation damages,which make it difficult to find reliable theoretical support when formulating judicial interpretations.By examining the relevant theories,the applicant’s requested appropriate expenses meet the constituent elements of both unjust enrichment based on rights infringement and infringement compensation damages based on the infringement of intellectual property legal interest.Although both can provide the applicant with a certain amount of monetary compensation,unjust enrichment does not consider subjective fault,lacks preventive effect,and cannot achieve a balance of interests in determining the amount of compensation.Therefore,infringement compensation damages should be used as the temporary protection basis for appropriate expenses,and the rules for determining such expenses should be established accordingly.Firstly,considering that the temporary protection system does not intend to impose liability on all implementers,it should focus on the subjects who obtain technical information through public application documents and implement it.Implementers who obtain technical information through other sources,such as independent research and development,should have a defense right from other sources of information.Secondly,considering the difficulty of proving the source of technology,a responsibility attribution method should be adopted that presumes that the implementer does not have any defense reasons.That is,it is presumed that the implementer obtained the information from public documents.The implementer should prove that the technical information was obtained from other sources to be exempt from liability for compensation losses.Finally,based on further consideration of the special issues in temporary protection systems such as cross-period products,when the actual loss standards cannot be applied,factors such as the infringement of legal interests rather than rights,and the absence of a prohibition right for the applicant should be considered in determining the amount,in order to achieve a balance of interests among all parties.