Research On The Doctrine Of Patent Implied Licenses

Since the first patent law established in 1984, particularly after entering WTO our government has made unremitting efforts to improve patent legislation and strengthen patent protection. However, as most developing countries, China's legislative activities have been focused on the recognition and protection of intellectual property rights. With respect to legitimating the exercise of IP rights and balancing the interests of the patentee and the public, there are more problems in our patent system. The developed countries led by the United States were always blaming our protection level of IPR. In fact, there is a greater gap between the theory of limiting rights and patent infringement defense system and the developed country's.The rule of implied licensing came from the equitable principle of "legal estoppels," and became an important principle of law. The rule plays an important defending role in the patent infringement litigations. In many cases, the courts of the United States apply the rule of implied license to balance the interests of the patentee and the public. These situations are not unique to the American judicial practice, and our courts faced the same problems. The introduction of the rule will contribute to improve China's patent system and raise our protection of patent. Meanwhile, the introduction of the rule will also help to improving our enterprise's capacity of responding to a patent infringement claim.In this paper, the author discussed several common situations that the implied license can be inferred and the condition for the license to be established. On this basis, the author analyzed the feasibility of introducing the rule in china.