Research On The Legal Application Of The Temporary Protection System Of Invention Patents

After the disclosure of an invention patent application in China,the applicant is not entitled to prohibit others from imitating the implementation of the invention,which may lead to the applicant’s market share being partially seized and resulting in significant losses.The temporary protection system for invention patents can provide certain compensation to the patent holder after the patent is granted,thereby balancing the adverse effects of technology publicization on the patent applicant.However,the legal nature of this system has not been explicitly defined in Chinese legislation,and there are different theoretical views,including undue enrichment,conditional contract,and expectancy rights.The technology involved in a patent application is a product of intellectual labor of research and development personnel,which,once made public,becomes available for unrestricted use by the public.Until patent authorization,the patent applicant does not have exclusive rights to prevent others from carrying out the invention,and even after authorization,there are "exemption clauses" that allow for subsequent implementation.Furthermore,in judicial practice,there are problems with the unclear consideration factors and calculation methods regarding the amount of temporary protection period usage fees.Referring to foreign legal systems,it is suggested that the establishment of temporary rights to protect public patent application technology is instructive.Introducing a warning notification system to determine the subjective intent of the implementer for learning purposes and using multiple factors to determine usage fees are also worth studying.Based on the reality of our country,it is suggested to try allowing prioritized examination with conditions during the temporary protection period to protect the technology of patent applications after being made public and to impose restrictions on subsequent implementation behavior without expanding the scope of use.Factors related to subjective intent of the implementer should also be further clarified,and a statutory compensation system should be established for the confirmation of the amount of the temporary protection period usage fee.