Research On The System Risks In The Utilizations Of Patent

To promote the use of patent is not only the universal objective of patent system, but also an important part of patent strategies in some countries. However, in China, there exist system risks in the use of patent and relevant institutions which limit the full exploitation of patent value and lead to low transfer rate of patented technologies.Through careful analysis on the current patent system of China and its potential impacts, this dissertation concludes as follows:(1) At present, the biggest system risk that restricts independent enforcement of patent license is the unreasonable ownership system of service invention-creation. For inventions accomplished with company material and technical service, whether the licensors are appointed to be the inventors or designers or to be the inventors or designers and the companies by contractual agreements is not conducive to the independent enforcement of patent license. From the efficiency and fairness perspective, the service invention patent should belong to the inventors or designers'companies.(2) The running enforcement system of patent license in china inclines to ensure the licensors'control over patents while leaves the licensees to bear more risks, which is not conducive to patent licensing. Therefore, suggestions are proposed: First, establish implied license system, improve the patent invalid flaws in the implementation of the licensors'security responsibilities and endow the right to enforcement of patent license with legal status of transfer, pledge and investing. Second, the licensees have the options to cancel the license contracts or continue to perform the license, where the licensors are bankrupted. Clearly define the exercise conditions and effectiveness scope of both licensors'and licensees'option rights, and further regulate measures of exercising rights to cancel. Third, construct patent licensing contract transfer system in the Bankruptcy Law.(3) Restrictions are put on the transfer and license implementation of the pledged patent. Pledgeors are deprived of the rights to know the use of patents and to control the corresponding revenue. Risks exist in the patent pledge system and limit full utilization of patent value. Recommendations of the patent pledge system are as follows: First, pledgeors are endowed with the rights to transfer, implement and license the pledged patent; Second, pledgees have rights to know the transfer, implementation and license implementation, and to some extent, to control the resulting benefits.(4) Unreasonable system and opportunism between part owners incur risks to the use of joint patents. Recommendations are as follows: First, endow joint licensors with the rights to implement, commonly implement the joint patents and share the resulting profits ; Second, endow joint licensor with the rights to pledge the joint patent in his own share; third, in the course of maintenance and judicative and administrative protection of joint patents, licensors resume separately the consequences of his actions. Given that opportunism between part owners will always incur risks and amendments of system couldn't solve all problems, some managerial precautions against risks have been proposed.