The Application Of The Patent Implied License

Since the first patent law established in 1984,particularly after entering WTO,China's patent law has been tremendous improved in theoretical,legislative and judicial activities.However,China's legislative activities has long been focused on the recognition and protection of patent rights,while paid less attention in the exercise of patent rights and the balance between the patentee and the public.As the increase of cases which concerning the legitimate exercise of patent rights,and different standards has been adopted in different cases,the theory of limiting rights and patent infringement defense system in China's is facing great challenge.One of the rules in theory of limiting rights and patent infringement defense system is the rule of implied licensing.The rule of implied licensing came from the equitable principle of “legal estoppels”.With its flexibility and diversity,the courts in United States mostly apply the rule to balance the interests of the patentee and the public.The rule of implied licensing has been greatly developed in United States.Meanwhile in China,although huge potential of development and application in the rule of implied licensing has shown in judicial activities,as a country with rigorous statute laws system,the rule of implied licensing hasn't been established in the legislative patent law.In the meantime,researches in theoretical activities are still on initial stage,greater effort should be made in study this rule.In this paper,on the basis of China's judicial activities,the author analyze the cases with present theoretical studies.Focusing on the specific situations in China,by comparing the rule of implied licensing in theoretical and judicial activities,as well as along with the fourth amendment of China's patent law,the author points out the problems exists in theoretical,judicial and legislative areas,and gives bring forward some opinions.