The Research On The Probabilistic Patents

Patents are rewards for the person who have contributed to economic growth by the inventions. As patent is the exclusive right granted by law, more and more scholars and policy maker have been focusing their attention on it. Complaints about patent quality are nothing new. Nevertheless, the numbers of them are soaring in recent years. Professor Mark A. Lemley and Carl Shapiro established the Theory of Probabilistic Patents from a brand new perspective, pointing out that the quality of patent is uncertainty, which has broken through the traditional framework. The theory is of practical value to solving new problems and the reform of patent system.Probabilistic Patents theory points out that the uncertainty of granted patents is not caused by mistakes. The uncertainties of patents jeopardize the interests of enterprises other than the ones in possession of them, increase the spending of industry, thwart fair competition, hinder the development of new industries, and even infringe the public interests.This paper, with the methods of theoretical study, i.e. comparative analysis, value analysis, empirical analysis and so on, analyzes the theory of Probabilistic Patents. For the aim of the paper and the research purpose, it collect relevant offering and regulation at both home and abroad, sum up and analyze this documentation, as the basis herein. Through multi-level and perspectives, this paper studies the patent system with the new prospect, in order to fulfill our country's present patent system, achieving the combination of theoretical study and practical needs.This paper can be divided into five parts: the first part concerns the Probabilistic Patents, explaining the content of the theory and other related behavior in patent system, and preliminarily analyzes the relationship between patent uncertainty and the expanding of patents; Part two is about the reason of Probabilistic Patents, mainly analyzes internal and external causes from three respects: the invisibility and immateriality of patent object, the uncertainty of definition patents and the transformation of patents environment; Part three concerns about the influence of uncertainty of patents, Patent abuse aggravated by uncertainty of patents, patent thicket,, and the impact on social and public interests; Part four is to study adopting policies and measures that foreign countries have done to reduce the uncertainty, the suggestions of the FTC report, analyzing utility regulation of United State, Great Britain and Japan, and United States patent prosecution and patent litigation systems; Part five is about proposals for reforming of patent in china, references on the experience of developed countries, indicates the deficiency of China's patent law and patent system, evaluates some reform of new patent law, and puts forward suggestions on patent law and perfect patent agent system.The study on the Probabilistic Patent should begin with the system itself. For the invisibility and immateriality of patent object, it is impossible for patent to prevent uncertainty. In order to reduce the misuse of patent right, it is necessary to take proper measures to restrict patent right. The way that reforms the system of granting patents to issue the quality of granted patents is proper for now.The establishment of the patent system provides moderate stimulation to the technological innovation. Patent right is one of the most important achievements of modern legal innovation. Reforming the patent authorization system and improving the quality of patent are the perspective of patent law reforming.