Research On The Legal Issues Of Green Patent

Problem of international intellectual property and public policy, as an improtant issue of the WIPO, attracts widespread concern in recent years. After the Doha declaration on public healh has reached, the problem of intellectual property rights and environmental policy becomes the new focus. Especially the developed countries and developing countries have conflicting opinions on the rationality of environmental technology transfer mechanism such as compulsory licensing. In addition, the term of green patent system becomes the emerging terminology. Different scholars used this term arbitrarily in their discussions for the convenience of demonstrations, which cause the terminology extensive and lack of unity, became vague and fuzzy words. How the scope of green patent system shall be defined? What the rationality and necessity of establishing green patent system are? In which aspects of traditional patent law rules should be made modification by green patent system? All these questions need to be answered.The dissertation consists of five chapters, writing thinking is that the theory of public goods is used as the starting point to explain the green patent system, the patent is interpreted as the provision of public goods, and the objectives of patent law is refined to achieve the optimal provision of public goods. In order to achieve the optimal provision of public goods, the patent system must be coordinated with environmental policies, makes the appropriate changes at an institutional level, regulates the environment-related technologies from the negative and positive aspects, and establishes the environment-friendly patent system.The first chapter is a summary of green patent system. The definition of green technology in the documents of different conturies and international organizations varied, but the green technology at least can be defined as the technology with environmental sounding value through the description of their characteristics and classification. The article describes the content of public goods theory, explains the role that the patent played to provide public goods, and discusses the necessity and rationale of green technology being patented. The international intellectual property system lacks of redistributive regime so as to the imbalance of private and public inerests, then the double externality of the environment-related technology doubles the damage caused by imbalance. Green technology patent regulation is not equal to the green patent system, green patent system should include both negative and positive sides. The pursuit of the green patent system to the objective of optimal provision of public goods related to multiple stakeholders, and will lead to conflicts and disputes in three levels.The second chapter discusses examination and acquisition of the green patent. Green patent should include negative and positive sides, patent examination standard should include the standard of "avoiding" prejudice to environment and the standards for green technology. Referring to some cases of the European Patent Office and other international organizations the standard of "avoiding" prejudice to environment can be clarified. Standard of green technology can explain what kind of technology can be attributed to areas of green technology, therefore enjoy the special treatment of the patent law. Because of the change of examination standard, the burden of proof, the setups and the delimitation of functions of review agency will also change. In order to encourage the diffusion of green technologies, the rapid review procedures and special examination cost arrangement may play the positive effects.The third chapter elaborates the green patent limitations and exceptions, compulsory licensing rules. TRIPS Art.30 is the provision of patent restrictions and exceptions, WTO panel interpretation of Art.30 (ie, three-step test) has always been questioned and criticized, especially in the green technology domain the reform of three-step test is necessary and reasonable. Under the context of climate change, the reform of compulsory licensing rules became the focus of controversy between developed and developing countries. In the area of green technology, the application of compulsory licensing is possible. But due to the limitations of the compulsory license and the special character of green technology, the effect of copulsory licensing in the transfer of green technology is smaller than people’s expection. However it is no denying that the export restrictions of the compulsory license is a violation of international trade theory and the principles of patent law, the efforts taken by developing countries fighting to cancel the restrictions on exports are reasonable and necessary.The fourth chapter discusses three new green legal mechanisms in green patent system. Eco-patent Commons analogies to the model of open source software, and has become new economic and legal model of renewable energy technology diffussion. It cateres to the demand of user innovation and open source collaborative innovation, realizes the sharing of green technology, and has very important valuation. The patent system on the internalization of environmental cost transfers the environment cost into various patent taxes and fees, takes advantage of the theory of redistribution, solves the double externality problems, and realizes the integration of domestic and international mechanism. However, because the formation and operation of international institutions are difficult, implementation of the system still need further efforts. As the public sector research achievements, some green technology patent needs to take special licensing rules. This paper discusses the critical role of public research achivements in the field of green technology, and the necessity of establishing socially responsible licensing for green technology research, taking the Bayh-Dole reform as a starting point.The fifth chapter analyzes the patent examination and other relevant rules of China green patent. The development and diffusion of green technology industry has its particularity in China, China as the factory of the world can provide and produce a large number of green technology products but not really grasp the core technology. China’s patent law should introduce into the environment standards, and can set the standard by referring to the environmental impact assessment method. Establishment of green channel or rapid review procedures has certain rationality in China, but must have certain organization disposition, which is difficult to achieve in the short term. Developed countries assert extending environmental technology patent term in order to promote environmental friendly technology innovation and improve the environment, but it is unsuitable for China. U.S. Hatch-Waxman Act reform aimed at the pharmaceutical industry, the inappropriateness of patent term extensions can be drawn by comparing pharmaceutical industry with green technology industry. The compulsory licensing rules of 2008 patent law have made some improvement, but still leave many defects. China in international negotiations should strive to use this measure more effciently, and continuously improve the domestic competition law so as to use TRIPS31 (k) exemption from export restrictions. Patent enforcement of Chinese public research institutions in China faces many difficulties, which also casts light upon the field of green technology in China. So we must make appropriate improvement for this to realize independent innovation and diffusion of green technology.The construction of green patent system does not only complied with the demand of promoting mitigation technologies transfer, but also pursue the optimization of public goods provision from the essential target of the patent law, considering the double externality of environmental technology, adjust part of patent law in order to reduce the adverse externality, increase the good externality as far as possible, and finally achieve coordination of the patent law and the environmental policy.