On Implied Patent Licensing

Patent implied license has become an important infringement defenses. Implied patent license is an academic concept, but this concept can’t be found in China’s Patent Law. But in the United States and other developed countries, patent implied license has been extensively applying and became an important right of defense. Patent implied license is an expression corresponding to the written or oral license. It refers to an act undertaken in a particular case by the patentee and his behavior makes others think that the authorization agrees the patentee to exploit the patent in accordance with the principle of reasonable reliance.Patent implied license is essentially a contract and a limitation of the patent, however, it is also an infringement defenses. The situation of the patent implied license is very extensive.This situations are as follows:based on technical standards, technology promotion, sales, the original agreement and the breach of contract and repair. Applicable conditions of the patent implied license include four sections. Firstly, the implied behavior of the patent exists before the alleged infringer’s infringement. Secondly, the alleged infringer produces a licensee based on the implied behavior of the patentee under the patented reasonable reliance. Thirdly, the patent holder does not set restrictions to exclude the implied license of the establishment. Finally, the alleged infringer needs to take enough proofs of the proposition in the implied license. Patent implied license includes the license type, scope, duration, geography and costs. This needs to be inferred under the specific areas and circumstances of the patent implied license. In practice of infringement legal proceeding, the defendant’s avocations of patent implied license would be permitted by the judge, and then the judge could confirm the contents of the patent implied license accordance to the facts of the cases’evidences and the principles of fairness and justice. China is a statute law country, the provisions should contain patent statute implied license. As the legislative conditions are not ripe, provide judicial interpretation and guidance cased on patent implied license in order to clarify the connotations and applicable conditions of patent implied license to meet the needs of trial practice is a realistic way to build the patent implied license legal system of China.