The Study Of Compulsory Licensing Regulation Of Patent Abuse

Since the second half of the 20th century, along with the arrival of information industries time, the world economy has maintained a strong growth, the people start to realize that the science and technology are the root of the growth of economy and the social development. The technological innovation achievement has improved people's life. The patent protection level is getting higher and higher to drive the technological innovation.Along with the advancement of the era of knowledge economy, the patent has already been an important weapon for a person, an enterprise and even a country standing in subdues. In the present era, competition between nations and the enterprises more and more manifests as the competition for the intellectual property, and without doubt the patent competition is important. As a result of agreement's sign of the knowledge of the world property right, the transnational enterprise has seized the major part profit in the world industry chain link, taking the government as the backing, using the patent to control the industry; In home, the patent holder or the human permitted that uses implementation power of his technical monopoly, grasps the words power the profession, causing some enterprises pay heavy price by carrying on unfair competition. The patent law is the law protecting the private right of the owner, but the more important is that it must protect the public's demand, promote the advancement of the technology, and impels the development of people. In order to balance the interest between the patent holder and the public, the patent law should achieve a balance point. Therefore, as the developing country it is especially importantly that we must take the attention on patent abuse while protecting the patent, and using the patent limit system carries on the powerful rules and regulations. In the future the world competition will be the competition of intellectual property, and the patent is the main chip of intellectual property rights'competition.This article divides into four parts.The first part of the article elaborated the origin and the concept of patent right , the potency of the patent, then introduced the concept and the nature of patent abuses, the origin theory of the patent abuses, and in the legal principle theory of law has analyzed the constitution important document of the patent abuses.The second part has analyzed the necessity of the patent abuse from the angle of legal principle theory of law, the angle of economic view and the benefit balanced: First, the patent should receive the legal rules and regulations as a kind of social right, while according to the right relativity theory the patent holder should undertake certain duty when enjoys right, not abuse its sole right; The second, the patent system is to drive the innovation of technological and promote development of the economic, but the patent abuses actually runs counter; Finally, the patent abusing destroy the benefit balanced relations between the patent holder and the public, destroy benefit balance between patent holders. In view of the reasons above, we must carry on the rules and regulations on the behavior of abusing the patent right.The third part introduced in detail the concept, the international development of compulsory license principle. Based on that, which abused to the patent has carried to the patent compulsory license system on the economic analysis and the utility analysis, and to compulsory license system when the rules and regulations patent abused the behavior the exploitation conditions have carried on the detailed elaboration, subsequently introduced the patent abused classified and patent obligatory license rules and regulations measure and correlation legislation.The fourth part of the article has analyzed the restrictive condition for the patent compulsory license system from technical angle and legal angle, and has analyzed the third time revising of the patent law, basing on this proposed rules and regulations of the compulsory licensing system: First, make the rules and regulations on compulsory licensing system patent perfect; Second, establish the compulsory licensing management system to regulate patent abuse; Third, establish related evidence system of patent compulsory licensing.This article take and the compulsory licensing system ruing and regulating the patent abuse as an object, to carry on the effective rules and regulations the theoretical analysis through the history of compulsory licensing system, the national legislation, specially the third revises of the patent law, finally to achieve its ultimate objective, namely driving the innovation of the technological and promoting the development of the economic.