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Research On Patent License Of Right

Posted on:2018-01-03Degree:MasterType:Thesis
Country:ChinaCandidate:J T XieFull Text:PDF
GTID:2346330515990465Subject:Intellectual property law
Abstract/Summary:PDF Full Text Request
“License of Right”is a new institution of the <Chinese Patent Law(Draft)> which was just promulgated recently.This institution is intent to solve the problem of the low rate in patent licensing.As a new production of legal transplantation,there are few articles about this topic in Chinese legal community.Is that necessary to transplantation this constitution?How to design the specific regulations of it?These questions had never been proved.Meanwhile,the regulations which was drafted in <Chinese Patent Law(Draft)> is far from perfect so that it is necessary to argue the radical problems of this constitution.This paper will compare with the alien constitution which is similar to this topic and analyze it by the economic method.This paper is consisted of five parts:The first part of this paper will define the concept of “License of Right” and its basic components.The concept will be defined by referring of the content which was written in<1977 Patent Act>of UK,<Intellectual Property Code>of French,<Patent Law>of German and<Civil Code>of Russia.The concept will be defined as the follow words:License of Right is the license which was set forth to the Patent Administration by the patentee and permit anyone to use it after the Administration register and notice this plea.In addition,this paper will analyze the components of this constitution and sort it into “essential components” and“unessential components”.The second part of this paper is about the economic analyze of the constitution.The purpose of the economic analyze is looking for the faults of the current regulations.In fact,License of Right is used to solve the problem of high cost in patent licensing which is mainly content with the cost of negotiation and assessing.Without the stimulation of fee discount,this constitution is ineffective.Moreover,it order that the patentee must announce the license fee without negotiating with the licensee.This regulation is ineffective as well because of it neglect the bounded rationality of the licensee.Furthermore,there are no limitation for the patentee to submit the plea and as a result it will encourage the “effective breach” of the existing contract which is not supported in Chinese Civil Law Community.Part three is force on comparing with the alien regulations.There are a series of limitations for applying the License of Right by patentee in the Law of UK,French andGerman if the patent had been exclusively licensed to others.In addition,the patent which apply to License of Right can only pay for 50% patent fee in UK,French,German and Russia unless the license was quashed by the patentee later.Moreover,it is no need to announce the license fee in the alien law when the patentee submit the application.There are three different methods to ensure the license fee which were concluded by the precedents of UK if the license fee cannot be negotiated by the litigants,such as the “Comparable Approach”.Furthermore,other special regulations were formed in the precedents of UK as well,for instance,the infringer can continue using the patent if he apply for the license,but he cannot set forth the application of invalidation at the same time.Lastly,there are different limitations if the patentee plan to withdraw the license,German Law is not allow to quash the license,French Law allow the patentee to quash the license without any inference of the existing licence and British Law allow the patentee to quash the licence under the allowance of all licencee.The forth part of this paper is about the suggestion of License of Right.The first suggestion is added the limitation in applying license of right by the patentee if such patent had been exclusively license to others.But the Administration cannot review this limitation initiatively before the objection was set forth by the licensee.The second suggestion is added the regulation on the patent fee discount to stimulate the usage rate of this constitution.Third,the licencese fee should be negotiated by two parties freedom and it be decide by the Administration only if the negotiation is failed.In order to ensure the license fee decision is impartial,it is necessary to learning the regulations which had been adopted on the precedents of UK,such as “Comparable Approach”.Forth,the pre-judgement provisional injunction cannot be submitted during the license term.It also should be banned the licensee from submitting the objection of invalidation and application of Licence of Right at the same time.The fifth suggestion is adopted the principle of contract law into the License of Right.As a result,the application of Licence of Right which set forth by the patentee should be regarded as an offer which is a public offer exactly.This kind of offer will arrive the offeree while the offer is sent out.According to the Article 19 of <Chinese Contract Law>,the patentee is allowed to withdraw this application but the license which had signed will not be impacted.Finially,both the patentee and licensee should be the litigants of the register and the content of the register can be regarded as the evidence when the Administration decide the license fee.The fifth part of this paper is about the signification of License of Right in China.The“implement of patent right” had became another core of patent law in China because of the legislature are aware of the low rate of patent implement.The way from right registration and right protection to right implement reflect the tendency of Property Law which include the Intellectual Property Law.The appearance of License of Right means this kind of tendency is coming.Chinese patent law can regarded this constitution as the starting point and center on the “implement of patent right” for development.
Keywords/Search Tags:License of Right, Economic analyze, Limitation of application, Discount of patent fee, License fees, Statement of quashing the application, Application of patent invalidable
PDF Full Text Request
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