| Accompanying intellectual property rights as a tool for competition among countries in science and technology trade,the development of patent operations in various countries is in the ascendant.Because of the existence of "risk jungle" throughout the entire life cycle of patents,patent operation risks lie in a series of processes that are implemented by legal actions such as patent applications,transfer,and licensing based on the patent system.The study found that patent operation risks and patent operations accompany each other.The legal connotation of patent operation risks includes micro-levels such as patent infringement,patent hijacking and other meso-levels that impede the allocation of market resources,and weaken the macro level of reinvention and harm to social welfare.Among them,the patent system is a legal factor of the risk arising from the meso-level and macro-levels,because the patent system gives the patentee a monopoly status.In order to achieve this “legitimate inequality”,the right allocation allows the patentee to enjoy “patent pricing power”.Even if the lawsuit,the infringer still has to pay high compensation,this gives the patentee the opportunity to obtain high profits through lawsuits or litigation threat,and this risk of “patent hijacking” weakens the incentive for patent users to innovate,which in turn hinders innovation and even undermines social welfare.Therefore,the patent right entity is not the only protagonist in the prevention and control of patent operating risks.The importance of the patent system cannot be ignored.It is recommended to gradually establish a localized patent operation risk identification mechanism that suits China’s national conditions by effectively identifying and preventing legal risks such as patent rights being unclear and patent rights abused.On the one hand,the property value of the patent right is conferred by the patent system.This legal dependence makes it a “risk indicator” and any legal risk that derogates from the value of the patent property should be recognized.On the other hand,the patent system exposes the patent risks in stages,and should give priority to the legal risk of the patent application phase and patent death phase(patent licensing,transfer,and conversion phase).In addition,the validity and monopoly status of a patent right are the preconditions for the patent right to have a property value,and both of these are,of course,legal factors in the determination of patent operating risk.It proposes systematically to actively prevent and control risks from both the substantive and procedural aspects,including the provision of legal solutions at the substantive law level from the five steps of patent application,patent examination,patent authorization,patent protection and patent transaction.The procedural law reasonably limits the scope of application of the prohibition order and establishes a two-dimensional three-dimensional patent invalidation procedure.Therefore,this paper intends to clarify the concept of patent operation,digging out the legal connotation,legal factors,legal characteristics and other related theories of patent operation risk,and the theory of interest balance,the source of the legitimacy of the patent system,and the right allocation of the patent system are the basis for the prevention and control of patent operating risks.On the one hand,by combing the current status of patent operation risk prevention and control at home and abroad,and drawing on successful experience in risk prevention and control,the legal elements of China’s patent operation risk identification have been established,allowing risk prevention and control to be targeted.On the other hand,from the legal system and the two levels of the enterprise,localized legal proposals are proposed to help build an ecosystem of patent operation risk prevention and control. |
