Research On The Royalty In The Temporary Protection Period

China has implemented an invention patent review system for “early disclosure and late review”.Full disclosure is a prerequisite for substantive examination.There is a long period from the time when the application is disclosed to the time when the patent is granted,and the disclosed invention technology is highly likely to be used by others in the above stage.In order to protect the interests of applicant in the “temporary protection period”,Article 13 of the “Patent Law” of China stipulates that after the publication of the invention patent application,the applicant may request the unit or individual who implements the invention to pay the reasonable royalty.That is,the royalty in the temporary protection period.However,the provisions of the Patent Law and its related legal documents on the provisional protection system are too principled and general,which leads to the lack of guidance and hard to operate in determining the fees in practice.This paper selects the royalty in the temporary protection period as the research object,through the analysis of the case and the comparative study of the field,expounds the current situation of the royalty in the temporary protection period in China,and analyzes the problems existing in it.Trying to give a reasonable solution path.This article consists of four parts:The first part introduces the temporary protection system of patents and its basic concepts from the perspectives of the historical origins and institutional purposes of the patent temporary protection system.It elaborates on the nature of the royalties and the basis of claims.In the second part,this paper summarizes the principles,conditions and standards that are commonly used to determine the royalty in the temporary protection period.Generally,the court judges the eligible right holder to make certain compensation according to the principle of fair liability or equity,and refers to the amount of the existing license fee.In the absence of the existing license fee,the judge determines the amount of the use fee at his discretion.The third part introduces the special regulations of the United States,Japan and Germany in determining the royalty in the temporary protection period.After comparison,the principle of all market values adopted by the United States,the conditions for obtaining royalties in Germany and the standard for determining the cost in Japan are worthy of our country to learn from.The fourth part expounds the problems of the single fair liability principle in China when determining the royalty in the temporary protection period is too vague,the compensation amount is low,the conditions for obtaining the fee are not comprehensive,and the lack of uniform standards leads to large differences in cases.The problem puts forward corresponding suggestions for improvement,including the determination of the specific principles of the balance of interests and the principle of total market value.The conditions for the user to request the royalty during the temporary protection period are improved,and the conditions for allowing the applicant to request the royalty during the temporary protection period and requesting the right holder to issue a warning notice as the request fee are added to the original conditions.In the specific standard part of determining the cost,this paper proposes to use the calculation basis multi-weighted ratio to determine the amount of the usage fee.When determining the calculation basis,the return-to-return method is first option,the reasonable license fee method based on virtual contracting and based on intellectual property rights play a role as support.The statutory compensation for the valuation,and it is recommended to apply the return income method in priority,and apply the statutory compensation as the basis.The judge then determines the weighting ratio based on the principle of balance of interests,and finally draws the amount of the specific usage fee.