Research On Restriction System Of Patent Right

Like on other intellectual property right laws, the patent law is an interest balance mechanism coordinating and balancing interest relations of knowledge-products; and the restriction system of patent right is an important component of the interest balancing mechanism and the foundation and guarantee for effective operation of the patent law in the society. Under the international circumstances of requiring more protection on the rights of patent and before the strategy of the developed countries’launching intellectual property right hegemony, how to further realize and perfect the restriction system of patent right, exert the purposes and functions of the patent system and balance interests between developed countries and developing countries are urgent and important subjects.In addition to the introduction and conclusion, the thesis is divided into seven chapters.Chapter 1 is based on the concept of the restriction system of the patent right, researching and defining the connotation and the extension of the restriction system of patent right and discussing source and development directions of the restriction system of patent right. In this chapter, it figures out that, the restriction system of patent right is the system restricting exercising right of the patent right, within the inclusion of internal and external restriction systems. As a indispensible important component in the patent system, the restriction system of patent right and the patent right protection system supplement with each other, mutually interact and help each other to realize the purpose and function of the patent system. Known from the development process of the restriction system of the patent right, the system carries the interest gambling process between the patent right bearer, the user and the social public, and between developing countries and developed countries, as well alternative struggling of patent right expansion and restriction. It is hereby pointed out that, the restriction system of patent right is a law system and policy tool which is continuously adjusted during dynamic development process of interest pattern. Chapter 2 discuss social foundation, theory basis and its application principle for the existence of the restriction system of patent right in a view of social reality, economic analysis and theory of legal principle. This chapter points out that, the existence of the restriction system of the patent right is rooted from domestic factors and international factors, and the necessary choice for a state to realize its policy targets. The restriction system of the patent right is the best system selection in line with economic analysis, and the necessary choice for interest balance principle, public interest principle, non-misuse principle of right and other law principles.Chapter 3 and Chapter 4 are the comparative researches of the restriction system of patent right, which researches general restriction system and special restriction system of patent right. Chapter 3 engages in researching the system employed by various countries for the general restriction system of patent right, although the detailed information and scope are not so consistent with each other, it includes right exhaustion exemption, priority right exemption, temporary transit exemption, experimental use exemption, Bolar exemption and etc. For there are many disputes on the issue of right exhaustion (especially parallel import) theoretically, legislation and practice in various countries are not uniform; the priority right system and experiment use exemption are occurred in juridical practice, but there are dramatic differences in legislation and practice of different countries in respect of detailed concepts and applicable scope; as a new-rising exemption, Bolar exemption is highly concerned for it relates to public health. Therefore, after section 1 of this chapter, one section is arranged for discussing the four systems further respectively. The compulsory patent licensing system researched in chapter 4 is highly concerned for outstanding conflicts between public health and drug patent bearer. This chapter states existence basis, significance and category of the compulsory licensing system from the historical source and the development of the compulsory licensing system. Based on the above, this chapter analyzes deep relevant rules and practice of this compulsory licensing "for public interest licensing" and the theoretical basis and practical significance of "local implementation requirements", points out the importance and realizability of such issues, and proposes suggestions on how to utilize TRIPs protocol better in a view of developing countries.Chapter 5 and Chapter 6 are the comparative researches of external restrictions of the restriction system of patent right. Wherein, chapter 5 researches in a view of influence and restriction of the patent right by Civil Law, and chapter 6 researches in a view of influence and restriction of the patent right by Competition Law. Chapter 5 seizes the restrictions of such basic principles in Civil Law as faith and credit, non-misuse of the right, public order and good morality and etc. to the performance of the patent right and the restriction and influence of the freedom of contract in Contract Law to the patent right, states according to the theory and in combination with judicial practice, and pointed out that, as a private right, the patent right to some extent shall be ruled and affected by Civil Law. Chapter 6 discuss the issue of restrictions of Competition Law on the patent right on the basis of relevant competition legislation in America, EU, Japan, Taiwan and other countries and regions, and of control measures on three misuse conducts expressly listed in TRIPs protocol, and points out that the patent right ruled by the Competition Law is the necessary choice for history development, and the coordination and adaption between them shall be highly concerned. There are so certain applicable rules on the external restriction itself, and restriction and counter-restriction of the patent right face the measurement of "extent" and stalemate with various backgrounds and environments.Chapter 7 analyzes current situations of the restriction system of the patent right in China and proposes relevant legislation suggestions. Through many years’ construction, the restriction system of patent right in China has taken on and forms a certain system. However, there are many details and deficiency to be perfected, and many spaces to be built up and supplemented for the external restriction. For the purpose of realizing the patent system, relations between patent right protection and patent right restriction, as well as hidden interest disputes behind the patent system must be carefully studied in China, so as to establish and perfect the restriction system of patent right applicable to China’s national situations.The last part is the conclusion. Based on the foregoing, this part gives a general interpretation on the essence and the development trend of the restriction system of patent right, pointing out that, confronting with the situations of the patent right protection vigorously launched by developed countries for the time being, developing countries must analyze the interest balance in the patent system seesaw battle between developing countries and developed countries calmly and wisely in a historic view and highly focus on the restriction system of the patent right in combination with different national situations.