Research On Patent License System

In recent years, with the fast development of economy and society, intellectualproperty is playing a more and more important role. Just as the same as the countriesthose are developed in economy and technology such as America and Japan, ourcountry has set up national intellectual property strategy, and intellectual property hasbecome one of the new economic growth point. As a part of intellectual property,patent is playing a role with no doubt. In order to adapt the fast-changing situation ofthe world, our patent law which was established in order1984has gone through threechanges until this year, as so our institution is becoming much better than before. It isa pity that we did not get much progress in the region of patent infringement defenseas patent protection. So it is very necessary to do some timely and effective researchto realize the function of value balance which the patent law should own.In judicial practice, there are more and more cases of patent infringementdefense in the form of patent implied license, however, the patent law of our countryhas no specific, targeted provisions. In view of the double need of theory and practice,this article attempts to explore the implied license system by researching patentinfringement cases. This article can be divided into five parts just as follows.PartⅠ: Introduction of the cited case (Guangxi A company v. Henan Bcompany).After the introduction of the case and its result, it comes to the disputationsof this case, which include nature of the case, how to define an implied license and itsexceptions, and contents of an implied license.PartⅡ: The applicable scope of implied licenses in patent infringement defenses.Based on the analysis of the origin of patent implied license theory, this article definesthe concept and legal nature of patent implied licenses, and then the applicablescope of implied license is summarized, which could be classified as those relatedwith technology, those related with products and the other types.PartⅢ: How to define an implied license and its exceptions. This sectionfocuses on the conditions to define an implied license, which are analyzed from the external aspect, the inner planes and the procedure level. In the end some examples ofthe exceptions are given to the readers.PartⅣ: Contents of an implied license. The author believes that in the cited case,Henan B Company can get its patent implied license, so in this part the contents ofpatent implied license are summarized from four aspects: its extension, type, durationand price.PartⅤ:Conclusion of the study. In the last section of this paper, the authoranalyzes the results of this trial, and then gives out a suggestion on how to improveour country’s patent implied license system: It is not suitable for the patent impliedlicense to be incorporated into law through legislation, we should continue tostrengthen the related theory research on patent implied license and summarize itspractical experience. Now we can recognize it in the form of judicial interpretation,and then make sure it is definitely stipulated in legislation when the time is right.