The Patent System To Limit Research

In the introduction, the author will give a brief account of the word "patent" at first, the nature of patent right and its fundamental features, then the invading trend of that right and how we deal with it. At last the author mentions the purpose of this thesis and the significance of it.In the first part, the author briefly introduces and gives an outline of the theory of the restriction on patent. Firstly, the author gives a conclusion on the theoretical grounds of rationality of patent restriction from the angles of jurisprudence, the value of law, civil law, law and economics, intellectual property law, public interest, and intemational law. Secondly she introduces the different categories of the system of patent restriction. After analyzing those categories, she has a conclusion that the patent restriction is a restriction on patent holders who have already been granted a patent right and the right is in the effective term when they exercise their rights.In the second part, the author focuses on the specific systems referring to patent restriction, namely the systems in the following aspects: the right of prior use, the right to use of temporary transit, appointed-enforcement, compulsory license, fair use, exhaustion of patent right, good defense, confidential patent. On the bases of briefing the effective rules and regulations of those systems mentioned above, not only in China but also in foreign co .untries, the author finds out the purpose of legislation and gives a comment on the reasonability of those rules and regulations.In the third part, the author deduces the principles of patent restriction from general principles of right restriction, and offers some suggestions to amending, supplementing and adjusting of the system of patent restriction.Concerning patent restriction, people should follow these principles: patent restriction should have justified reasons, and only come from valid law; patent restriction should not undermine the effects of patent and harm the legal rights and benefits of patent holders and should not decrease the encouragement on invention and creation in the field of patent; patent restriction should be adopted at minimum if necessary. In order to better the system of patent restriction, some suggestions were provided in the thesis as follows.As far as the right of prior use was concerned, it should be clarified that the technology used prior should come from lawfully, what kind of preparation can be said that the prior user has done the necessary preparation, the right of prior use is only a defending way. In addition, prior users should be allowed to enlarge the scale of executing appropriately, while can not be entitled of import. Further more, the right of prior use and the ownership of the enterprise of the prior user can be inherited and transferred at the same.As far as the right to use of temporary transit was concerned, it is advised to add an article which goes like this: "when repairing and providing components for imported vessels, airplanes or vehicles, the owner can import components without the permission of patent holders who have got patent license in China, but should abided by the principle of reciprocity."As far as fair use was concerned, the fair use of the patent right should be provided clearly. People should combine the way of generalization and that of listing together--listing on the basis of scoping fair use, in order to avoid the adjusting range of the law from being too narrow and to ensure the law can be applied much more practically and easily. At the same time, the judicial interpretation should play a guiding role actively.As far as planning license was concerned, it is advised to broaden the scope of planning license into all kinds of patents applied in China, and the Authority can give the license to proper executors for public interests when necessary as soon as the patent applicator applies for the patent license. At the same time, it should be provided that the patent applicators or patent holders have the rights to make a claim for compensation.As far as the right of compulsory license was concerned, it is advised to add "insufficient exestuation" as one of the conditions for applying for compulsory license, to define explicitly "the state of emergency" in the right of compulsory license concerning public interests, and to add provisions that the right of compulsory license can be transfer with the ownership of enterprise conditionally. As far as confidential patent was concerned, it is advised to join Regulation on National Defense Patent into Patent law of the People's Republic of China.In brief, the author presented her own suggestions on patent restriction after a study on theories and legal regulations concerned.