A Study On The Judicial Practice Of Patent Licensing Under The Perspective Of Public Interest

According to article49of 《PATENT LAW OF THE PEOPLE’S REPUBLIC OF CHINA》," Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department Under the State Council may grant a compulsory license to exploit the patent for invention or utility model."However, according to the present information, since the creation of compulsory license of patents。This provision has never been used.In recent years, the people’s court for patent infringement took the lead to breakthroughs in judicial practice.In judicial practice, once identified patent infringement, the common practice is that the people’s court will order the infringer to immediately stop the implementation of the patent infringement involved.But in some cases, The Court will consider the public interest as a factor, allowing the infringer to continue to exploit the patent after they pay a fee. The fact is that the people’s court grants a compulsory license to themMany scholars argue that the people’s court Should allow the compulsory license, in order to realize the balance of interests of the patentee and social public interest, No matter from the legislative value of patent law and compulsory license of patent system on purpose, or the point of practical need.However, according to the regulation of the patent law in our country, The compulsory license issued by administrative authority, while the people’s court allowed the infringer to continue implement the relevant patent in the form of judgment is facing the legality of the behavior of torture and also suffering a doubt on the rationality of ruling, although based on the public interestsWhat is public interest, what is the condition of private right to public interest and what is the essential standard of patent compulsory licensing and so on.