Research On The Patent Implied License System

China has made remarkable progress in perfecting patent legislation and strengthening patent protection since the first patent law was enacted.However,China's patent system still has major defects in regulating the proper exercise of patent rights and balancing the interests of the patentee and the public.This paper summarizes the problems and reasons in the application of patent implied license from Chinese legislation and judicial practice,and at the same time explores a set of patent implied license rules applicable to China based on the patent implied license theory in Britain,Germany and the United States.Based on the detailed introduction of the connotation and applicable conditions of the patent implied license,this paper deeply analyzes the necessity and feasibility of the construction of China's patent implied license system,and puts forward feasible Suggestions on legislation and judicial practice on the construction of China's patent implied license system by combining the domestic and foreign legislative and practical status.The first part Outlines the connotation,characteristics and types of the implied license of the patent.The patent implied license refers to the form of patent license established by the patentee,under which the patentee,by means of an implied license,gives the patentee a reasonable trust to permit the patentee to use the patent.This part defines the connotation of patent implied license by analyzing the provisions of other countries on patent implied license and differentiating it from relevant concepts.The common types of patent implied license are also described and analyzed.The second part analyzes the necessity and feasibility of the construction of the patent implied license system.Based on the analysis of the deficiency of the existing system in China,the causes of the problems in the practice of patent implied license are obtained,and the necessity of establishing the patent implied license system is analyzed based on the status of judicial trial.Next,this paper expounds the feasibility of the construction of the patent implied license system,and analyzes the legal basis and practical experience of the construction of the system respectively,which provides the possibility for the construction of China's patent implied license system.The third part compares and analyzes the current situation of the patent implied licensesystem in some foreign countries,which provides a reference for the construction of China's patent implied license system.This part takes the British and German implied license system as the introduction point,and emphatically analyzes the specific provisions of the us patent implied license system,from which the relevant theories applicable to China are drawn.Among them,the earliest stipulation in the UK is that,after the patented product is sold legally for the first time,as long as the patentee does not put forward restrictive conditions,the buyer gets the implied license;In order to further protect the rights of the buyer,Germany creates the principle of exhaustion of rights,that is,to remove restrictive conditions imposed by the patentee;Based on the principle of estoppel,the United States' implied license theory integrates Britain's implied license theory and Germany's principle of exhaustion of rights,and on this basis,the application of the implied license rule is extended beyond the sale to cover the parts of the patented product and the equipment implementing the patented product.These models and their legal rules are worth our reference.The fourth part puts forward specific opinions on the perfection of the patent implied license system in China.According to above implied patent license the analysis of the characteristics,types and so on,as well as to the countries to draw lessons from the related system,the analysis of the implied license applies to the situation of our country's patent system,namely to perfect our country civil law general principles,basic rules and clear the specific provisions of the patent law,and specific content of the Chinese patent implied license system of patent implied license scope,standards,self-interest WanShanHua Suggestions are put forward.In order to perfect our intellectual property protection system and improve our level of patent protection.