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Reconstruction Of Patent Contact Theory

Posted on:2012-07-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:G J ChenFull Text:PDF
GTID:1116330371453459Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
This article contains two principal clues.The first principal clue is related to patent contract theory.At first, current basic theories regarding patent systems are briefly summarized, and among which economy stimulus theory and patent contract theory which are more reputational and influential in the field are discussed in further details. Although each has a plurality of supporters, both of these two have respective difficulty in solving practical problems. Further referring to the contract justice theory, based on the economy stimulus theory and the conventional patent contract theory, the author reconstructed the patent contract theory. In the reconstructed patent contract theory, the author criticized the concept of"standard of patent right", and highlighted the concept of"standard of public"when considering a fictional patent contract.The article asserted that the protection to the legal interest of the patentee is an approach rather than the final goal of the patent system, and the final goal of the patent system shall be maximization of public interest as a whole. Accordingly, instead of taking the interest of the patentee as the core of the patent contract, more solicitude shall be given to the public interst in the patent contract. Along with the concept of the"standard of public", in the reconstructed patent contract theory, the author rejected the widely admitted view point of"exchange between monopoly and disclosure"regarding the patent contract theory, and prompted an alternative view point that a patent contract is equivalent to the exchange of legal freedom and technical freedom of the public. Being the relative party of the patentee, the public achieves the technical freedom of implementing the technical solution disclosed by the patentee from the establishment of the patent contract. However, as a trade-off, the public loses legal freedom of implementing the technical solution disclosed by the patentee. As such, although achieved the technical freedom of implementing the technical solution disclosed by the patentee, the public, serving as the relative party of the patentee, needs to pay for a patent license for the purpose of achieving the legal freedom of implementing the technical solution.The second principal clue is related to the solicitude to the public interest of the patent system. The author summarized three critical problems currently existing in the Chinese patent system, including indulgence of questionable patents, absence of representative for the public interest, and disoriented mechanism of interest balance, respectively. In fact, in accordance with these three problems, it can be concluded that insufficient attention is being paid to the public interest in the Chinese patent system. The solicitude to the public interest shall be directed to pay attention to, in the patent system, what kind of unfreedom and what kind of freedom shall be attributed to the public, what kind of duty shall be taken by the public, and what kind of right shall be granted to the public.Along with the second principla clue, this article further discussed how to embody the solicitude to the public interest in patent contracts.Firstly, the author believes, despite the difficulty of operation, the patent system shall pay more attention to the justice characteristic of patent right (i.e., patent contract). It is particularly important to identify non-judicial patent rights from judicial patent rights for protecting the public interest. The author recognized that allocation of rights and duties to the parties of a patent contract shall strictly depend upon the basis of justice of the patent right. Sufficient protection shall be provided to the patentee of a judicial patent right, so as to efficiently stimulate the real inventors to sufficiently disclose their innovations to the public, thus contributing to the technical development. On the contrary, no protection shall be provided to the patentees of non-justicial patents, in order to maintain the public interest undamaged thereby. In a patent infringement litigation, the suit and defense are usually concentrated on determination of the justice characteristic of the patent right at issue. Secondly, the author recognized, in the current patent system, there is no representatives of public interest sufficiently involved in the proceeding of determining the justice characteristic of patent contract during the process from patent prosecution to the procedure of maintaining the validaty of the patent right. Accordingly, it leads to the abense of solicitude to the public interest in the current patent system. On the one hand, during the patent prosecution process, patent examiner is not a direct party in interest of the patent contract, and therefore comparing with public under direct threat of the patent contract, the patent examiner will be more likely to compromise to the patent applicant, such that in most circumstances, the allocation of right and right in the patent contract is in favor of the patent applicants, rather than the public. On the other hand, before the expiration of the patent right, specified public is no longer a representive of the public interest in any procedure of determination of the justice characteristic of the patent right.Thirdly, this article further discussed the duty of disclosure of specification. Determining the disclosure of the specification is sufficient or not is in fact equivalent to determining whether or not the patent applicant has fulfilled his duty to convert the public from an unfreedom condition to a freedom condition, while the duty is a necessary precondition for the establishement of the patent contract. The author suggested imposing a higher duty of disclosure to the patent applicant so as to gurantee the conversion of the public from the technical unfreedom to the technical freedom.Fourthly, for the purpose of protecting the interest of the public in patent contracts, the author further emphasized that certain duty of good faith shall be fulfilled by the patent applicant in the patent prosecution process or the patentee in the process of enforcing his patent right. The socalled patent contract is a fictional contract, and there is no detailed regulations stipulated the duty of good faith in the patent law and its implementation rules of China, which is adverse for the protection to the public interest. The author recommended to introduce the unenforcement defense to the patent system of China correlated to the nonfulfillment of the duty of good faith, for providing the remedy to the public.Finally, this article discussed the domain of the freedom of the public regarding the patent contract. According to the analysis of this article, the boarder of the patent right has four dimensions, i.e., timing dimension, territory dimension, technical dimension, and objective dimension, which integrally define the domain of the patent right and correspondingly define the unfreedom boarder of public.These two principal clues are substantially parallel with each other in the article. During the novel explanation of the patent contract, attention are paid everywhere to the public interest. Firstly, protection provided exclusively to the justicial patent right is really consistent to the public interest. On the contrary, any protection provided to non-justicial patent right is nothing but a misappropriation of the public interest. Secondly, a party specified from the public is no longer a representative of the public interest, and the representative of the public interest shall be those who really stand for the public interest. Thirdly, for the purpose of better protecting the public interest, the author suggests to introducing higher duty for the patent applicants to force them more thoroughly disclose their invention to the public, not only enabling people skilled in the art to implement the patented technology, but also enabling any ordinary person within the territory having a medium level skill in the art who wishes to implement the patented technology to do so.
Keywords/Search Tags:Reconstruction
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