On Patent Right Limit

The protection of intellectual property has been the focus of society recently. The reason is that protection of intellectual property is not only a legal question, but it baseing on the technology background, conerning the progress of science and technology and the safety of economy of economy, so that becomes the focus of government,enterprise,individual. However, with the strengthen of patent protection, another voice has risen up for the protection emphasizes more on individual interest not obey with the patent system principle which balance the interest between individual and public, so it must be limited to the patent right to avoid abuse, outspread of patent right to ensure public interest. This article discuss the limitation system of patent from society, philosophy of law and jurisprudence by comparing analysis, theory relating practice and points that our country should strenghthen the limit of patent in exhausted right, compulsive use, abuse use. This article is composed of four parts: In the first part, it discusses the principle of patent system which includes exclusive and publicity, and explains the publishing the content of patent is premise of authorizing the exlusive right to patentee, and it is mutual benefitable between individual and public benefit, for that patentee can gain disinvestment and profit to begain more technical research, and the pulic can share the information of technic from publication of patent. This is the key of the patent system. The patent system is based on balance of interest. It does not ensures the exclusive right of patentee, but ensures the intrest of public. Patent is creative production of patentee, and it also comes from the society, so it must be limited. This article points out that it should emphasize particularly on public interest. Philosophy of law mainly discusses Luco's theory of labor and property and theory of intellectual personality. Luco's theory gives us the basement to hold the intellectual fruit of his own, and points out the precondition to hold is to leave enough and well resource, in order public people can use it freely. But this article points out this theory only emphasizing on division between individual and public resources not much analysising limit to exertion of intellectual fruit. Jurisprudence discusses on the necessary from balance of right and liability. The second part analises on patent limit system in existence includs of time limit, regionality, not treating as infringement. Patent do not be protected for ever for it's life, when the profit of is respound to patentee enough, the patent should be the public property to advance the sharing, spreading and improving of technique, or it will block the development of science and technology. Patent is only available in one country which authoring the right.This article points out regionality of patent comes from the sovereignty, so our patent system should not stickle consistenting with the international treaty, it should entirely use the right authorised from the international treaty, do limit to the patent with protecting. Not treating as infringement includes of priority right, exghausting of right, passing territory temporarily, using for science research, etc. it also do limit to patent, balancing the interest between individual and society. The third part points out that our country should strengthen to limit patent in according with our country condition. This article also ponints that right exhausting not only in one country but also outside the country and analises on the necessary of it to protect our enterprise's initiation of importing the production. And in the same time, The condition of compulsive exertion of patent is strict by TRIPS, however, Declaration on the TRIPS agreement and public health makes compulsive exertion of patent smoothly. It restates that each member has right to release of compulsive exertion and decide the reason, it emphsizes to protect public interest. Our country should enlarge the range of compusive exertion of patent and legislate in anti-abuse ofpatent right, to protect our country industry, and to advance development of ecnomic. Abuse of patent and monopoly do harm to development of patent, so it must be limited. at the same time, this article brings forward the advice for monopoly of technical standard.