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Economic Analysis Of China's Legal System Of Patent Infringement

Posted on:2009-06-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:P WangFull Text:PDF
GTID:1116360272472445Subject:Political economy
Abstract/Summary:PDF Full Text Request
As to the justness of patent protection, there exist different opinions from two groups. The essence of the dispute lies in contradiction of patent system between the pros and cons. Faced with this problem, economists have designed an optimum patent mechanism from three aspects: the length, width and height of patent protection, in order to seek the equilibrium between loss of social welfare and encouraging innovation brought by patent monopolization. In 1960, Ronald, famous economist of U.S.A., published his thesis about the problem of social cost, thereby laying a foundation to law economics. Hereafter, theories about trade expense analysis and property rights analysis etc., have been applied to the study of economic analysis of infringement law, which surged a new tide of the study. However, the discussion about the legal system of patent infringement was actually rare. Though several young scholars in our country have carried on beneficial attempt to this from different angles, the study still seems relatively backward in the following ways: First, the study was not intact and systematical enough; Second, the study lacked optimum system design; Third, the basic theories about legal system of patent infringement were not fully understood.The legal system of patent infringement came into being with the development of commodity economy and progress of the technology, especially with commoditization of technology. From the viewpoint of economics, the system of patent infringement has four major parts: The first is its second-defining system; The second is the judging system to fall into the patent protective range; The third is the arranging system of executing patent rights; The fourth is the solving system of externality. Moreover, the legal system of patent infringement has two major characteristics: One is to form a prohibitive norm by merging the exercising system of rights with the relieving system; The other is to exert a relatively stricter limit to rights compared with others.Compared with the category of patent rights in law science, the focal point of the patent right in economics is the efficiency. The patent right has such economic characteristics as exclusiveness, decomposing nature, being amortized and high cost of defining. Since the initial defining of the patent right is mostly unclear enough, in order to realize the function of the property right, the initial problem that the legal system of patent infringement should solve is to define a distinct property right, i.e. to define the patent right for the second time. After the patent right is defined, through analyzing labor value and comparing cost and income, an economic pattern needs to be constructed to make judgment about which kind of products and methods fall into the domain of patent right protection. Generally, as to the arrangement of implementing right, it belongs to the patentee, and it is efficient that the patentee should trade the right voluntarily through negotiations with others. However, in some cases, the high cost of trade can actually inhibit the trade of implementing right. In order to utilize the patent technology effectively, the implementing right should be granted to the party which appraises supreme the net value of implementing right.Patent infringement produces externality. It is obviously insufficient to solve the problem of externality through the traditional way of government interference. Instead, both property rule and liability rule should be used synthetically to solve the problem. When confirming liability for tort, different liability rules should be applied in different situations, encouraging infringers to exert the social optimum attention level and behavioral level: To the seller and the user of the infringed products, liability rule of the fault should be applied. Whereas to other implementers, the liability rule of non-fault should be applied. Meanwhile, the variety in the amount of compensation by the court's judgment plays a different role in encouraging infringers to choose the optimum behavior too. Generally speaking, to fully compensate real losses is an efficient choice. But in confirming patent infringement under the lost situation, it is a relatively correct calculation to add an average to the loss, which can also encourage infringers to take the optimum behavior.On the whole, the legal system of patent infringement of our country accords with the demands of economic development stage of our country and of efficiency. However, some problems still exist, which calls for the need to further improve both defining system of patent property and arrangement system of implementing right; to perfect sharing rule of the cost of lawsuit; to reform the trial system of patent cases patent case and to set up a unified patent higher court.
Keywords/Search Tags:China, Patent infringement, Legal system, Economics analysis
PDF Full Text Request
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