Study On The Provisional Protection System In Patent Law

In 1984,the first Patent Law in China was carried out,in which the 13 th article says that a patent shall include the right to obtain a reasonable fee from any person who implement this patent during the date of publication of the application,and ending on the date the patent is issued.From this moment,the provisional rights system was established officially.However,compared with the patent infringement protection system,there is little attention from the legislators which is payed to the importance of the provisional rights system.For this reason,some scholars argue that Chinese Patent Law legislators should amend the provisional rights system.And many of them advise the legislator to learn from the provisional rights system of American Patent Law.But the truth is that many of them compare the two countries' provisional rights systems without considering the differences between the two countries' patent law systems.‘Stones form other hills may serve to polish the jade of this one.'‘Lessons learned from the past can guide one in the future.'In order to learn a salutary lesson from American provisional rights system,we need to study the patent protection systems of China and America firstly.This paper can be divided into the following five parts:The first part explains the history of the provisional rights system in the beginning.Provisional rights systems of China and America both come from the deferred examination system.Secondly,by comparing the two countries' statues of provisional rights literally,two evident differences are found between them:on the one hand,the preconditions of the two countries' protection for provisional rights are different for the reason that Chinese provisional rights system doesn't consist actual notice regulation;on the other hand,American provisional rights system chooses the reasonable royalty as the standard for the accused person to pay for the patentee,howerer,the Chinese provisional rights system has no standard for reasonable fees.In the second part,the actual notice regulation is studied by four steps.The first three steps mainly focus on explaining the actual notice regulation,and the last step pays attention to figure out why Chinese patent law legislators abandon the actual notice regulation.Specifically,in the beginning,through the case of Rosebud,we get a cognition about the actual notice regulation;secondly,we continue to research the deeper connotation of the actual notice regulation through learning cases by sorts.Thirdly,we conclude that American patent courts don't allow the patentees to sue implementers according to the actual noticeregulation before their patents have been issued.In the last but most important step,it is found the reason why American Patent Law and Chinese Patent Law have different attitudes towards the actual notice duty is that the American patentee and the Chinese patentee have different duty of care.The third part pays attention to the distinction between reasonable royalty in American Patent Law and reasonable fees in Chinese patent law.Legislators in America think that the implementation of the patent application before its issuance should be treated as a patent covenant between the patentee and the implementer.But in China,the judge used to attribute the implementation during the provisional protection period as a patent infringement.The fourth part puts forward to some advices and shares a few views about Chinese patent provisional protection system according to the essential distinction of the patent protection systems between China and America.Firstly,depending on Chinese national condition,this paper concludes that the actual notice regulation does not fit Chinese patent protection system;secondly,it can be proved that the unjust enrichment system can not explain the nature of the provisional fees which is mentioned in the 13 th clause in Chinese Patent Law.In the end,this paper proposes that for one thing,the Chinese patent law legislator should establish the patent licence fee standard as soon as possible,for the other,they need to accept the calculation method of the reasonable royalty which is invented by the American patent judges.The fifth part is the epilogue.Today,with the speeding-up of the technology's upgrading,the period in which a patent could bring profits to the patentees has been abbreviated.However,the period of the provisional protection can hardly be cut down.So the importance of the provisional protection system is rising now.In a word,Chinese current statutes in provisional protection system are vague and hard to enforce.A wise choice is to draw lessons from the American patent provisional rights system.