Research On The Legislation Of Patent License Contract Civil Liability

Patent license contract for exploitation is an important kind of contract of technique cession, which occupies the increasingly important position in the current contract system, this doubtlessly plays a positive role in promoting technique fruit commercialization and quicken science technique modernization step. At the same time, the dispute in the process of patent exploitation will become increasing, how to solve this dispute better is an important subject that science field and law field face to. This demands to make out concrete and detailed law provisions for the civil liability of the patent license contract for exploitation in order to solve these disputes better.The law relation of the patent license contract for exploitation is the broad sense relation of intellectual property, its object and implement also have their own specialty, so the civil liability of patent license contract for exploitation has the different characters from the general civil liability: The civil liability including default duty and infringement duty usually appears; It's difficult to judge the breaking law behavior whether to be produced by faults; In the process of the patent exploitation, the risk duty often appears; It's difficult to counter the loss in the patent license contract for exploitation; Penalty fee and indemnification fee are independent; The solution of the contract dispute demands the cooperation of the law department and the science department etc. The law provisions for the civil liability in the patent license contract for exploitation can be divided into three kinds according to its content: default duty, infringement duty and risk duty. In regard to the contract's civillaw meaning, the default duty is the most, its main undertaking methods include: Pay the penalty fee; Make up for loss. In practice, main performance of infringement behavior is: Infringe the third party because of the dangerous technique or accidents in the process of the patent exploitation; Infringe the benefits of person who has the intellectual property or the exclusive technique in the process of the implementing of contract. The person who has made an infringement should undertake the infringement duty for the injury. In the process of the patent exploitation, there will be all kinds of risks, such as: right disfigurement risk appearing after making the contract; market risk; technique risk. The risk duty and its undertaking methods are undertaken according to the agreement of the contract rather than are undertaken by the both parties reasonably without the agreement of contract.Now, there are a few problems in the legislation of the civil liability of the patent license contract for exploitation in our country. The demand "not bring into the contract cent" and the specialty of the patent license contract for exploitation delay in legislation. To some default duties, the relevant provisions are not in detail and can not show the equality and the justice enough now. To the infringement duty of the patent license contract for exploitation, the relevant provisions are not in detail and the problem of the spirit indemnity also needs to resolve.; the present law does not ordain indirect infringement behavior. In the aspect of risk duty, the relevant provisions are only the generalizing principles, and this is not enough. The law regulations about the necessary provisions of the patent license contract for exploitation must be in detail, otherwise, there will be more disputes to happen because of the unclear rights and liabilityAim at the current lawmaking situation, we should strengthen the patent consciousness, change objective factors, promote the patent exploitation, and perfect the legislation concerned about the civil liability of the patent license contract for exploitation. The system of the civil liability should regard two principles as the foundation: First, carry out the principle that the law must be combined with the parties' engagement. Second, regard the compensation with the property as the core and implement compensation principle characterized with punishment. The lawshould rule the principle of resulting in liability about the civil liability of the patent license contract for exploitation. Default duty should adopt the principle of fault duty; The principle of resulting to liability about the infringement duty is due to the combination of the fault and the non-fault duty; Risk duty should adopt the principle of the justice duty, besides law or the engagement of the contract, the party may not undertake the liability caused from the objective risk. To technique price, we need ordain concrete standard so that the parties can make the contract on the basis of justice ;we should ordain the indirect infringement behavior and its liability in the law ;we should try to establish legal compensation system and punishment compensation principle in the law; the infringement spirit damage compensation should be included in compensation; In the aspect of risk liability, we should try to establish a set of risk prevention mechanism and make great efforts to eliminate risk; we should try to establish government technique risk fund in order to better encourage exploitation and cession of technique, better promote technique fruit commercialization, improve the efficiency of patent technique. The perfect of the legislation about the necessary provisions of the patent license contract for exploitation is an important link of the perfect of the liability system. I think the necessary provisions include: Item about guarantees for valid of the patent right; Item about region; Item about keeping secret; Item about the provision of materials and the pay for the fee of the patent exploitation; Item about the exclusive character; Item abut restriction; Item about Following-up; Item about the duty; Item about the solving methods of disputes etc, they should be ruled in the provisions of law in detail.In a word, Aim at the problems in the system of the civil liability about the patent license contract for exploitation, we should continuously perfect legislation in order to protect the intellectual property better and promote the patent exploitation.