Research On The Compulsory License For Patents And The Compensation

There is a contradiction between the protection and limitation of intellectualproperty rights in the modern innovation mechanism. Without the protection ofintellectual property rights, there will be not enough innovation power, and thesociety is difficult to develop persistently and healthily; and no limitation tointellectual property rights, intellectual property rights may change to hinder theprogress of science and technology, and harm the public interest. With the rapiddevelopment of economy and trade, the relationship between countries is increasing,the protection of intellectual property rights is beyond the scope of the countrygradually, and requires international cooperation, which is focused on TRIPS and therelated international treaties and agreements; meanwhile, the protection ofinternational intellectual property rights does not give good effect to the publicinterests and health for developing countries and the least developed countries. On thecontrary, it hinders these countries to get patent products, and increases the publichealth crisis, which is contrary to the international human rights thought andhumanitarian idea. The calls of limitation of intellectual property rights are growingin the international community, particularly in the developing countries and the leastdeveloped countries.The contradiction is outstanding particularly in the area of the patent compulsorylicensing and compensation. Patent compulsory licensing and compensation is animportant tool in intellectual property system to balance the interest contradictionsbetween the developed countries and the developing countries, the patentee andlicensinge. The development process of the patent compulsory licensing andcompensation is a mammoth epic, which goes through more than one hundred yearsin the international community with thrilling struggle and compromise. From theperspective of the law and economics, benefit analysis (the interest contradictions between the developed countries and the developing countries, the patentee andlicensinge) and the specific cases, this paper makes detailed survey of the history ofthe compulsory licensing and compensation in the international and domestic society,carefully analyses the advantages and disadvantages of the patent compulsorylicensing and carefully analyses the compensation standards and methods. On thisbasis, there is a preliminary thinking about how to perfect licensing in our country.This paper is divided into four chapters, the first chapter defines the concept,character and reason of the patent compulsory licensing, summarizes the history ofthe patent compulsory licensing, and carefully analyses the advantages anddisadvantages of the patent compulsory licensing from the perspective of the law andeconomics. Chapter2makes detailed survey of the change about the patentcompulsory licensing rules and regulations. Through the analysis, this paper showsthe interest contradictions between the developed countries and developing countries,the patentee and licensinge, which make a good basis for analyses how to make outour attitude to the compulsory licensing and compensation. The third chapterresearches the compensation problem, especially compensation standards and thecalculation method of compensation, makes clear the factors to determine thecompensation, and compares the advantages and disadvantages of the calculationmethods of compensation. In reference to related developing countries’ practice, thethird chapter explores the approaches to solve compensation problem. On the basis ofthe simple survey of the process of the compensation compulsory licensing andcompensation problem in our country, the last chapter makes a preliminary thinkingabout improving our country’s patent compulsory licensing. For example, make fulluse of compulsory licensing system to protect our national interests fully in theinternational competition, make clear the related concepts so as to improve lawmaneuverability, etc. In fact, these problems are more relevant to Chinese reality, butbecause of the paper length and my ability, this paper does not spread further.