Research On The Recognition System Of Patent Opening License Fee

The fourth amendment of China’s patent law has introduced the patent open license system,and there are differences in the provisions of the submitted draft,the reviewed draft and the final draft.As far as the determination of license fee is concerned,the draft for examination stipulates that the statement of the patentee shall specify the license fee,and the resulting disputes shall be submitted to the patent administration department for adjudication.The deliberation draft stipulates that the patentee shall specify the payment method and standard of the licensing fee in the statement,and relevant disputes shall be mediated by the administrative department.The determination of license fee determines whether the system can operate effectively.However,neither the draft for examination nor the draft for deliberation has given the patentee the opportunity to negotiate with the potential licensee,and there is no procedure to change the price of the license fee.At present,the determination of patent opening license fee has four limitations:single pricing subject,fuzzy calculation standard,lack of price change procedure and absence of administrative ruling.The single pricing subject is reflected in that the patent law only gives the patentee the right to price the license fee and limits the right of potential licensees to participate in the negotiation.The lack of the calculation standard of patent opening license fee leads to the dispute on the definition of "clear".The value of the patent is not unchanging.The value of the patented technology is affected by many factors.If the parties are not allowed to change the license fee in time,it is difficult to be reasonable.With regard to the licensing fee that the two parties cannot reach an agreement,because administrative mediation has no force,the parties’ repetition is easy to lengthen the mediation procedure and increase the administrative cost.The introduction of professional and efficient administrative adjudication is more desirable for the settlement of license fee disputes.After investigating the pricing subjects,calculation standards,price change procedures and administrative rulings of foreign patent opening license fees,it is learned that the pricing subjects of patent opening license not only include patentees and potential licensees,but also the patent administrative department participates in the pricing and makes the final decision when the parties fail to negotiate.For the calculation standard of license fee,the corresponding rate is generally determined according to different technical fields,taking into account the R &D cost,sales cost and selling price profit.The provisions on the price change procedure are relatively uniform.One year after the initial license fee is determined,the patent administration department may be requested to re adjudicate the license fee due to changes in circumstances or unfairness.The Enlightenment of foreign experience to China lies in: introducing negotiation link into pricing rules to expand the negotiation subject of patent opening license fee;The calculation of patent opening license fee in China can learn from the calculation standards of necessary patent license fee of foreign standards and British patent opening license fee;Set up the price change procedure for the patent opening license fee and give the patent administrative department the right to decide the patent opening license fee,improve the efficiency of dispute resolution and reduce the transaction cost of the whole system.