Study Of The Patent Law Of The Jungle

The patent thicket principle is first defined by Carl Shapiro, the famousprofessor of law of University of California at Berkeley. It means that becausepatent technologies owned by many parts and are overlapped the practice or there-innovation of technology is blocked. Starting from the definition and idea ofpatent thickets of Karl Shapiro and connecting the foreign cases about the patentthickets, this article completes under the patent policy of encouraging creativityand applying more patents regardless the quality of the patent. It will help ourgovernment keep the peaceful head in dealing with the policy of patent applicationin order to blocking the harm from the patent thickets. In the beginning of thisarticle, the patent thickets are analyzed so that readers can briefly know themeaning it. And then, the reason for formation of patent thickets is described. Onereason is the mutual existence of the technologies; another is the relaxation ofchecking "Three natures" of patent application., which cause many "questionpatents". The "question patents" lead to the patent royalty much higher thannormally, which will seriously hinder the practice or the re-innovation oftechnology. In the following part, the harm of the patent thickets is discussed indetail. "Patent landmine" is the main harm, actually, the landmine is the"upstream patent", which will be used to get much higher royalty than normally.Generally, the landmine is not foreseeable for user of the patent. On the contrary, ifthe patent user knows the existence of the "upstream patent", but the patenteewants to get much higher royalty than normally otherwise the practice or there-innovation of technology may fail in absence the right of use the "upstreampatent". We call this phenomenon as "The tragedy of the anticommons". If manypatentees owned many patents in some field and monopolize the technologies ofthis field. One single person who owned the basic patent will be surrounded by thepatents of monopolizes, which will impede the practice or the re-innovation oftechnology of the single person. We refer this phenomenon to "patent flooding". Inface of the harm from the patent thickets, many countries adopt the "crosslicense", "patent pool", "cooperative standard setting" and "compulsorylicense". The developed countries absorb almost all patents in some field in a "patent pool" to reduce the royalty and reveal the "landmine patent", at the sametime, the monopolylaw must be instituted to reduce the monopoly effect of the"patent pool", the development of the "patent pool" is "cooperative standardsetting", which will further block the harm of the patent thickets but at the sametime the monopoly effect is not avoided, so the monopoly law is needed in thedealing with the problem.In the final part of the article, I give the proposals and measures in the aspectsof the operation and regulations to mitigate the bad effect from the patent thicketsunder the current patent regulations and polices. First, we must decide the principleto solve the patent thickets according to the circumstance of China, which meanswe do not accept all the measures of the developed countries. The measures of thedeveloped countries must be adapted to the circumstances of China. Our countrysees the era in dire need of technique creativities and is competing with thedeveloped countries in technique field, so our policy is advantage to the creator oftechnique. At the same time, the proper measures must be adopted to mitigate thebad effect from the patent thickets, otherwise once the patent thickets is form, thecosts to solve it is very high. On one hand, facing the unjustifiably high royaltywhich the foreign patentees take using the patent thickets intentionally, ourcounties must encourage the technique creativity, at the same time, formulate thestrict regulation of compulsory license and set up the cooperative standard settingaccording the international customs. Facing the patent thickets of our country, thenecessary measures must be taken to avoid the re-creator and the user to tramplethe "landmine of patent", so the patents can be practiced comprehensively and thesocial benefit is fully appeared. On the other hand, we can set the high thresholdusing our advanced patent technique for the foreign re-creators and the users to getthe higher royalty. To mitigate the bad effect from the patent thickets, our countryshould limit the patent right if the patent is sponsored by the state. We admit thecolleges and the technique institutes hold the patent, but the patents are covered bythe compulsory license regulations and the license is exclusive and the royalty isreasonable. Otherwise, the patent can be cumulated or the companies closelyrelated to the institutes hold the basic patents and finally the patent thicketsproblem may appear and the creativity may be hold up. Our citizens not any pay for the patent, but also pay for the extra costs from the patent thickets, then, theinterests of citizens is violated dually. At the same time, we must establish the strictsystem for checking the "three nature" of patent to reduce the patent thicketsproblem fundamentally. Moreover, we propose the amendments to the patent lawof our county in detail, such as advancing the date of the publicity, strictly limitingthe patent priority, not exceeding the scope of the disclosure contained in the initialdescription and the claims and perfecting the exemption from the infiingement onthe patent because of the use prior to the application patent. In the final part of thearticle, we propose the establishment of the estoppels system in the civil law tohelp the cooperative standard setting and the execution of standard, this systemmay perfects the revealing obligation of the members of the patent cooperativestandard setting committee and makes the members not pull back what they havesaid. If we set up the estoppels system, we presume the patent does not protect bythe infringement of the patent law if this patent is not revealed as the committeerequires when the holder of this patent join the standard committee.