Study On The March-In Rights In The Ownership Of The Government-Invested Programmes’patent Right

Take Bayh-Dole Act as reference, the Science and Technology Law China enacted in2007meant to promote the motivation of contractor which cooperates withgovernment-invested scientific research project by changing the ownership of patents thatgenerated in the project. The practice of Bayh-Dole Act in the United States proves that thealternative of ownership could accelerate the speed of patents commercialization, therebyboosting business prosperity and increasing the public access to the new inventions. However,Bayh-Dole Act and Science and Technology Law have their unavoidable defect thatcontractor’s “improper use” of patents such as patent abuse or delayed commercializationcould be injurious to the taxpayers’ interest.The “March-in rights provision” is particularly designed for the situation above.According to “double–layer transaction” theory, contractor making a transaction withgovernment to retain patents right, but In the case of patents improper used, the governmenthas the right to balance the interest of contractor and the public by “march-in”(Mostly grantthe patent to a third party). In practice, improving efficiency of patent transfer by overawing isMarch-in rights’ main function. Nonetheless, the “March-in rights provision” in currentChinese Science and Technology Law is not without deficient。It actually could not bepractically used. Therefore, it is meaningful to study relevant legislation and the cases ofUnited States, which have the most advanced “March-in rights provision” in the world.By drawing lessons from them, market factors should be considered while March-inrights being implemented, the standard of “Practical application” shall be detailed as well, andproper procedure ought to be set to prevent March-in rights be abused by government.Inspired by the experience above, our legislative institution should establish “March-in rightsprovision” based on China’s own national conditions in the matter of implementation subject,conditions, approaches and remedy procedure. In order to improve the operability ofregulations, the standard of “reasonable price”” reasonable duration” and” Interests of thegeneral public and Nation” shall be established in implementation conditions of March-inrights. Moreover, to prevent abuse of intervention power, implementation approaches ofMarch-in rights should be partially restricted in low proportion government-invested project. The safeguard mechanism and remedy procedure should be established as well to protectcontractor and third party’s interests from being violated.