Study Of China's Patent Compulsory Licensing System Against The Abuses Of Patent Right

Patent abuse refers to the patentee's improperly exercising of his patent right, beyond the normal limits or scope allowed by the law, so that the public interests will be damaged. The principle of the patent system is to balance the interests between the patentee and the public, the purpose of the patent system is to protect patentee's economic interest and to make the public be able to make use of the patent. The patent holder's abuse of his right will harm the public's interest, destroy the principle of balancing of interest, thus the purpose of the patent system cannot be achieved. In order to protect the public's right to make use of the patent, to achieve the purpose of the patent system, the patentee's abuse should be restricted. The measures that adopted by the international treaty and some countries'legislation to restrict the abuse including anti-monopoly and compulsory licensing, and the compulsory licensing make the purpose of the patent system may be realized. Paris Convention for The Protection of Industrial Property (Paris Convention) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and some countries'legislation alleged that the members of union(WTO) have the right to take legislative measures, including the compulsory licensing, to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent. China's Compulsory Licensing system for restricting the abuses of patent is not rational and is inconsistent with the regulation of Paris Convention and TRIPs and the facts of China. It deviated the Theory of Balancing of Interests and cannot restrict the abuses of patent. The content of this thesis as follows:Chapter1:Section1: the theory of the Patent System;Section2: the history and the theoretic foundation of the Patent System;Section3: the function of the Patent System;Section4: the legal characteristic of the patent right;Section5: the demand of the patent's object;Section6: the restriction of the patent right;Section7: the theory of the balancing of interests and the purpose of the Patent System.Chapter2:Section1: the theory and the legal consequence of the abuse of civil right;Section2: the connotation of the abuse of the patent, the criterion to judge the constitution of abuse, the history of the anti-abusing theory, several detailed circumstances of abuse;Section3: the necessity to restrict the abuse of the patent right and the measure against the abuse.Chapter3:Section1: the history of the Compulsory Licensing System;Section2: the theory and the function of the Compulsory Licensing;Section3: several kinds of Compulsory Licensing, three kinds of Compulsory Licensing on the ground of abuse of patent right: failure to work or insufficient working, crossing licensing, anti-competition;Section4: the condition and the procedure for carrying the Compulsory Licensing System into execution.Chapter4:Analyzing the deficiencies of China's current Compulsory Licensing System, and tabling several proposals for improving it。...