Research On Compulsory Licensing Of Patent

In recent years,with the development of information industry,science and technology has gradually become the main driving force to promote the rapid development of economic,so people have gradually recognized the importance of intellectual property rights. Patents as an important part of intellectual property,has drawn great attention. The aims of seting the patent system is to meet the public demand for new technologies and promote the development of economic and Society. For this reason,the patent system gives the patentee to the exclusive right to use the patented technology in exchange for the public of it.However,on the one hand,for the monopoly interests,the patentee often abuse their rights to limit and exclude competition.Thereby the application of patented technologies will been limited.On the other hand,patent monopoly to some extent also hinder the wide application of patented technologies,especially in some areas that public interest is concentrated in, such as national defense,health care. When patent rights are exercised normally,it may also be detrimental to public interest. Therefore, when we protect the patent right,we also should limit it effectively. Patent compulsory licensing system has been born for this, and its plays an important role on limiting of patent abuse and protecting public interest.However,there are some issues that need to be clear. Is patent compulsory licensing used to limit the abuse of patent right feasible and reasonable?How to define the public interest in the patent law?What is the mode of action that compulsory licensing limits the patent abuse and protects the public interest? This article focuses on these aspects and carries out a systematic analysis linking some specific cases.This article is divided into four parts.Chapter I firstly describes the concept and characteristics of patent compulsory licensing system.Secondly,it introduces the historical development of compulsory licensing system and the relevant international conventions, and then discusses the significance of patent compulsory licensing system.Finally it introduces the Status of patent compulsory licensing enforcement in China. Basing on the analysis above,chapter II and chapter III respectively analyse compulsory licensing from the perspective of limiting patent abuse and protecting public interest.Chapter II firstly discusses the concept of patent abuse and the need for regulatory system and elaborates the rationality and feasibility to limit the abuse of patent rights with compulsory license system from the legal, social and economic respect.Then,combining the study of two case: the dispute about the Article 68 of Industrial Property Law of Brazil and Koninklijke Philips Electronics N.V v. Taiwan Gigastorage,it analyses the main forms of patent compulsory licensing system limiting patent abuse.According to the analysis of the typical case: Germany Polyfreon case,chapter III explains the concept and definition of public interest.Then it introduces the main forms of compulsory licensing system protecting public interest. Chapter IV introduces the legislative practice of compulsory licensing in China, and then analyses the deficiencies in legislation.Finally,on this basis,it provides the suggestions to improve compulsory licensing system in China.