Study On Temporary Protection Of Invention Patents

According to patent law of the People's Republic of China, the application of invention patent will be opened 18 moths later after it is applied. Since then, the technical secret of the invention will be exposed to the public, and it will be used possibly by other person. However, the applicant can't prohibit others using the invention. Also, almost 36 months will be passed before granting the patent right finally. Then, during those times, some measures must be taken to protect the invention. Statute 13 of our patent law stipulates that after the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee, which is called temporary protection. This thesis explains the stipulation of temporary protection carefully, which is composed of eight parts as follows:Part one: Through researching the stipulation about temporary protection in other countries, this part explains the difference of this stipulation in patent law among our country and other countries. Part two: the character of the temporary protection. During the time of temporary protection, the applicant hasn't gotten the compulsory license for exploitation. So, the using of the invention by others can't constitute an infringing act. Part three: requirement for temporary protection. It is very important to balance the benefit between the user and the applicant. So, only under some requirement can the applicant get the provisional rights. Part four: doctrine of equivalents and the doctrine of identities. The doctrine of equivalents for infringement of patented invention is a judicially created doctrine. So, the doctrine of identities and the doctrine of equivalents can be used in provisional rights. Part five: extent of temporary protection. The extent of temporary protection is determined by the doctrine of public interests and other elements. Part six: liability principle of temporary protection. The fault liability principle, principle of fairness, strict liability principle and fault judgmentstandard can't be applied in temporary protection. So, the principle of unjust enrichment can be used. Part seven: appropriate fee paid by the user. When decided the appropriate fee, subjective good and evil of the user determine the amount of compensation. Part eight: suggest on amending our patent law about temporary protection is given in this part.