Research On The Problems And Countermeasures About The Pledged Patents In China

As one of the important types of intellectual property, patents increasingly become important indicators of measuring technological innovation capability and economic competitiveness of a country or region. The patent system, as basic legal system to ensure high-tech industry recovering its investment interest and to stimulate innovation enthusiasm, also will be subject to a great deal of attention. At present, pledge of patent right as one of the important ways of dynamic use of patents, has become an important policy tool of our country to transform economic growth mode, to take the road of Knowledge-based Economy, which played a positive role in broaden the Technology small and medium sized enterprises’ financing channels, promoting the patent right, commercialization and capitalization of independent innovation achievements, but also has opened a way to diversify assets for the pledge. However, China’s pledge of patent right is still in the early stages of development, there are many problems urgently to be solved. Therefore, in-depth analysis of problems and causes of pledge of patent right of our country, targeted improvement of incentive mechanism, legal supply and judicial relief of patent right pledge of our country, thereby promoting innovation, utilization, management and protection of patent right, are brand new subjects urgently to research in academia circle.Relying on patent right pledge business, this paper contra-pose problems existing in the heoretical research and management practice of patent pledge of our countries, through integrated use of law, management, economics and other disciplines theory and research methods, along the idea of "refine research questions-perspective heoretical basis and practical bottleneck-analysis incentive mechanism, legal supply and judicial relief issues of patent right pledge-propose path to solve the bottleneck problems " to start research of patent right pledge problems and its countermeasures sequentially. The full text is divided into seven chapters.Chapter I Introduction. On the basis of combing the realistic background of patent right pledge of our country, through the domestic and international research on the status of patent right pledge and perspective of its limitations, to clarify the urgency, rationality and cutting-edge of deep thinking and systematic research of patent right pledge problems and solutions, to discuss the content, the research methods used and the possible innovation.Chapter Ⅱ Theoretical basis and practical bottleneck Of patent right pledge. Through investigation of institutional design on pledge of patent right in the United States, Britain, Japan and China, seeing through the theoretical basis and content it contains, summarizing the nature and characteristics of patent right pledge, digging the value of patent right pledge, especially the significance in the current China, and then giving deep analysis to the trilogy of patent right pledge as well as the existing bottleneck problems of our country, to provide a theoretical basis for the subsequent chapters and clarity research themes.Chapter Ⅲ Research on incentive mechanism of patent right pledge. Ineffective incentive mechanism of patent right pledge is one of the "bottleneck" our country currently facing in running of patent right pledge. This chapter begins from the level of patent itself, government positioning, the service system, etc. to deeply analyze internal and external reasons of ineffective incentive mechanism of patent right pledge in our country, then to prove and illustrate the serious consequences which will lead to. The ineffective incentive mechanism of patent right pledge in our country largely due to the risks inherent in the patent, inaccurate positioning of the government and the service which is not in place. Unpredictable patent value, volatile rights, information docking differences, updating rapidly, difficult to be realized, etc. all belong to the inherent risks of patents. Some local governments are accustomed to take care of everything and administrative intervention, not let financial institutions and enterprises to solve the problem of patent pledge according to market rules, which is not conducive to long-term development of pledge of patent right. Unsound enterprise credit system, patent right trading market and value evaluation rules also make incentives of pledge of patent right weak. Poor incentive mechanism has blocked enthusiasm of market participants, especially financial institutions, resulted in twisted operation such as too strict qualification examination, too short pledge contract period as well as decline of patent pledge business volume.Chapter Ⅳ Research on legal supply issues of patent right pledge. Due to loopholes in the law, coupled with many species of variables or factors which are intertwined, patent right pledge disputes are sometimes difficult to be effectively solved, which make litigants of patent right pledge face many difficulties to receive proper judicial relief. This highlights another "bottleneck" which our country currently is facing in the running of patent right pledge-the problem of legal supply shortage. Mainly though typical cases as latitude and longitude, this chapter individually expands research on pledge of patent application rights, re-pledge without permission, unlawful pledge and effectiveness of transferred security as well as the protection scope of the rights of pledged patents, etc., as the breakthrough of revising and improving the relevant legal provisions and enhancing the legal supply of patent right pledge.Chapter Ⅴ Research on judicial remedy of patent right pledge. Inadequate judicial remedy is another "bottleneck" our country currently facing in the running of patent right pledge. This chapter carries on in depth analysis of issues of realizing procedure of patent pledge right, registration of patent right pledge and patent transfer during the pledge period, lawsuit qualification of pledged patentee in infringement lawsuit, etc. as well as its objective and subjective causes, thus providing the foundation and basis for choosing proper path of judicial remedy problems of patent right pledge.Chapter VI Solution to "bottleneck" problems in running of patent right pledge. Based on the above, this chapter puts forward path to solve the bottleneck problems in running of patent right pledge, such as construction of incentive mechanisms, improvement of the legal supply and smooth flow of judicial relief. In running of patent right pledge, the government should fulfill the functions of organization, guidance, coordination, support and service, and strive to establish and improve enterprise credit system, intellectual property trading platform, and patent pledge assess market. Lack of legal system is the largest man-made risks faced by patent pledge, so there need to develop an intellectual property guarantee law at the macro level, which puts the patent right pledge as a separate chapter, systematically regulates the patent right pledge, to fill the specific legal loopholes at the micro level. The key to keep the smooth flow of judicial remedy is to enhance certainty, objectivity and rationality of law applies. This needs to strengthen research on law methods, to lift the ability of rational use of legal interpretation methods of the judge, thereby preventing the arbitrariness of the judge, and regulating the exercise of its discretion. It also needs to establish a multi-level personnel cultivating system of patent right pledge, and builds high-quality patent personnel.Chapter VII Research conclusion and prospects. The chapter summarizes and refines the research conclusions of this paper, generalizes striving directions of this subject for further research.