"Anti-patent" Research In The Perspective Of Theory Of The Legitimacy Of The Patent System

Perhaps everyone for the interpretation of innovation is different, but in the field of economy,innovation essence, is the intangible ideas into tangible assets. The intangible thought as a kind of abstract concepts, to be converted into a tangible wealth, the key is to apply for a patent, by patent inventor provide an institutional guarantee. But the patent is essentially a kind of public power intervention by the government and the establishment of a kind of private law on property ownership, monopoly is the essential attribute of patent, because patent of this feature, met many obstacles in the process of promoting innovation, and triggered a theory and practice have a lot of criticism, even there are many scholars on the patent system whether there is necessary. Starting from the date of its patent system, there are the contradiction between public and private interest.As the balance between public and private interest has been broken, the private interest is infinite expansion, public interest is infinite compression, against the patent right for them was growing.So this article first chapter in the federal government v. Microsoft case for wedge, based on the origin and development of "the patent system", indicates that the design of the patent system is not perfect, it has its own dark side, it is in the negation and affirmation of continuous development, to contribute to our understanding of the patent system has a more rational, prevent one-sided. The second chapter, through the nature of the patent system in the context of legal economics and innovation for the relationship, combined with the history of the patent system as well as the empirical analysis of China’s patent, suggests that the patent is not necessarily promote innovation, but the patent is likely to promote innovation. The third chapter through to the legitimacy theory dispute of patent system, attempt to shape the legal localization of norms.Patent law, although there is a strong policy orientation, but does not think so is an unjust law,patent law is the fundamental to the patent system design based on the maintenance of public interest, and must be close to the actual situation of each country, should be compatible with the country’s basic national conditions and using the flexible policy. If it’s just blindly cater to international agreements or copy foreign laws, if from the perspective of economics probably because of the public and private interest conflicts, and become an unjust law.