The Study On The Bolar Exception

The positive significance of the patent law is that it is the game rule in the new area of science and technohuanliquanren logy research and innovation. It guarantees people share the science and technology achievements orderly, compete orderly and promote the technique innovation. But at the same time, the patent system is always together with the monopolistic behavior, in the pharmaceutical industry, the patent law make sure that the pharmabetrieb gets gains for their huge investment on one side, but at the same time, it results in the monopolistic behavior which will bring immeasurable public hazard. So we have to find a equilibrium point between the patentee’s interest and the public interest, in order to find it, years of legislation and judicial practice have been developed and perfected and finally formed into the Bolar exception clause, Approved by the National People’s Congress, China enacted the first patent law of People’s Republic of China in1984,and it was formally implemented on April4th,1985.The patent law’s basis point is the fundamental realities of the country that China’s pharmaceutical industry was comparatively backward at that time, and considered that most countries of the world did not protect the patent medicine at that time. In the thirty years later, we continuously revised the patent medicine of the patent law. In order to follow the international advanced legislation, based on the basis of China’s specific conditions, China passed the decision of revising the patent law by the National People’s Congress Standing Committee in the11th National People’s Congress meeting. The revised patent law of People’s Republic of China has been implemented since Oct.1st,2009. There is an important change in the revise that it added the fifth section--provide information for the administrative examination and approval, for the manufacturer, user and importer of the patent medicine or the patent medical devices, foe who manufacture, use and import the patent medicine or other patent medical devices to the69article, namely the principle of international Bolar exception. This article begins with the presentation of the Bolar exception and then introduces the process of the its development and analyses its produce necessity next. The author specifically introduces and analyses the situation of implementation in the abroad, she emphatically introduces the development and current situation of the USA, Germany and Japan and then bases on the main condition of our country and through the analysis of the cases in the judicial practice to elaborate the necessity of the Bolar exception application, and analyses the shortages of our country’s Bolar exception in the current situation from three aspects--the scope of application, the confirmation of the time, the geographical limitations and the extention of the system in terms of patent protection. The author also puts forward suggestions to perfect the system of Pharmaceutical patents experiment in our country in order to fully realized the balance of interests in the patent medical makers and the imitated medical makers and the general public, so as to explore a Chinese pattern which suits the specifically implementation of the Bolar exception clause.