Research On The Application Of The Implied Patent Licenses

In our country, implied patent license system is a new concept. This concept should balance the interests of patentees and public, and protect the interests of the state. Drawing up law for implied patent license system not only meets the needs of the judicial practice, but also is good for the healthy development of economic construction of our country. Along with the patent technology of our country tort cases increasing continuously, it is an irresistible trend that the implied patent license rules were written in patent law. The application of implied patent license is that the infringers have reason to trust language or behavior of the patentee allowing their use of patents, and implement the patent act of manufacture, use, or sell. Deciding the situation about how to apply implied patent license mainly identified from three aspects:formal conditions, real conditions and procedural conditions. The formal conditions of the determination of implied patent license must be implied behavior of patent licensing. From the judicial practice, these cases will produce implied patent license, and they include the patent technology standard, national technical project promotion, product sales, the original agreement, nonperformance, the parallel import and so on. According to the implied behavior of patentee, defendants have reason to trust allowed using the patent, and the reasonable reliance is the substantive condition of implied patent license. Producing a reasonable reliance mainly has social basis, factual basis and rational basis. In the specific situations the behavior is the main judgment basis, and rational person standard is the basic standard about implied patent license. The production of implied patent license mainly depends on the specific situations which make others to produce the reasonable reliance. If some restrictions appear in the contract, they will limit the occurrence of reasonably reliable and exclude the application of implied patent license. Also being used for payment is a valid way to limit the application of implied patent license. The restrictions of the implied patent license are a rule which balanced interest again, and it not only can protect the interests of the patentee, but also build a safeguard of the public against monopoly interests. As a country of the civil law should have the rules of law, but due to China’s law haven’t legislation on implied patent license, which manifests the great confusion and chaos in the judicial practice about whether or how to apply implied patent license rules. Therefore, at an appropriate time it is necessary to make implied patent license system written into the rule of law, in order to ensure that the application of implied patent license became legitimate and clear. In writing process, because our country is lack of relevant literature and data, and the case of implied patent license are rare in judicial practice. For this reason, I serious analyses the conditions of the implied patent application and restriction with help of the typical case which come from in foreign and domestic. I hope it would be helpful to our implied patent license system.