On The Perfection Of Patent Dedication Rule

The patent dedication rule originated from the case of Miller v.Brass Co.in the United States in the 19 th century.After a series of precedents,it was finally established at the beginning of this century.In 2009,Art.5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Cases officially proposed the patent dedication rule for the first time,which provides effective guidance for judicial practice in China.However,due to the limited contents of the provisions,many problems are still pending perfection.This thesis has a total of more than 30,000 words,and is divided into five chapters.Along the following lines of research,the thesis is expected to gain something.The first chapter mainly explains the concept of the dedication rule,and uses historical analysis to explore the evolution of its origin and history.The dedication rule originated in the United States.It was designed to limit the abuse of reissue patent applications at first.Later,with the application time limit was clarified,its main function was changed from the restriction of reissue procedure to the restriction of equivalent infringement judgment.China officially introduced the patent dedication rule in 2009,which has a positive impact on judicial practice.The second chapter analyzes the theoretical basis of the dedication rule from three aspects of ethics,economics and policy.Specifically,this thesis demonstrates the naturality and legitimacy of the dedication rule from the perspective of ethics,analyzes the economic rationality of the dedication rule from the perspective of economics,and explores the practical value of the dedication rule from the perspective of policy.The above discussion analyzes the necessity and rationality of the dedication rule,and lays the legitimacy of the principle.The interdisciplinary theory enriches the basic theory of patent law,extends the intellectual property system personally,and tests the applicability of the patent system in practice.The third chapter mainly focuses on the current problems in the theory and practice of dedication rule in China,pointing out the existing disagreements and disputes.It is mainly concentrated on five points: the type of infringement applicable to the dedication rule is controversial;the types of patents applied are different;the procedures applied by the court are confusing;the applicable conditions of the dedication rule are not clear enough;and the necessary relief measures are lacking.The fourth chapter explores the specific application rules of the dedication rule in the United States from the perspective of comparative law,in order to obtain corresponding experiences.After experiencing long-term development in the United States,of the dedication rule,there are more mature solutions to some issues,more clear conditions for application and multiple remedial measures,which deserves reference.In the fifth chapter,this thesis proposes paths and conceptions for the localization and systematic improvement of the dedication rule,and provides more practical guidelines for judicial practice,which is conducive to alleviating the difficulty of application in judicial practice.This thesis answers the questions of the applicable procedures of the dedication rule in China and solves the disagreements in substantive issues.It should be clarified that the dedication rule,as an interpretation rule,can be applied by the court on its own initiative and has retrospective effect;it's application is not limited to equivalent infringement,and literal infringement may also be used;the applicable patent types include invention patents and utility model patents.This thesis puts forward effective suggestions for the application of the dedication rule and the remedial measures.The application conditions of the dedication rule must be specific technical solutions in the objective aspect,and should be perfected by referring to the rational person standard in subjective aspects.It is recommended to introduce a review reminder system,to establish reissue procedure and transform the absolute dedication rule to the rebuttable presumption of dedication.