International Comparative Study Of Patent Open Licensing System

On December 2,2015,the State Council officially promulgated the “ Revised Draft Patent Law(Draft for Review)”,and added a chapter on the implementation and application of patents in the draft for review,including the 82 nd and 8th in this chapter.XIII.In Article84,China has clearly stipulated the patent open licensing system for the first time.At present,the fourth revision of the Patent Law is under discussion.The research on the patent open licensing system is of great significance both in theory and in practice.The patent open license is essentially the authorized use of the patent enforcement right.It has the applicant's voluntary application,the application can be withdrawn,the applicant must clearly open the license fee,and the user can be the four characteristics of any person.According to China's patent licensing system,comparing the relationship between patent open licenses and general licenses and compulsory license systems,it can be concluded that patent open licenses are common license types in general licenses and are a new type of licensing system.Combined with China's current national conditions and institutional analysis,the necessity of establishing a patent open licensing system in China is to make up for the shortcomings of general licensing,improve the role of compulsory licensing,and improve the implementation rate of patents.The patent open licensing system originated from foreign countries and originated in the United Kingdom.Now many countries in the world have established a patent open licensing system.Among the countries with a patent open licensing system,the United Kingdom,France,Germany,Thailand,Russia,and Poland are the most representative countries of the current open licensing system.Using comparative research methods,we will conduct a comparative study of countries with patent open licensing systems from both macro and micro aspects.Focusing on micro-comparison,by separately sorting out the current British Patent Law of 1997,the French Intellectual Property Code of 1992,the 1980 Patent Law of Germany,the 1979 Patent Law of Thailand,and the Federal Civil Code of Russia.,Poland's 2015 "Amendment of the Industrial Property Law and Several Acts Act" and China's "Revision of the Patent Law(Draft for Review)" on the provisions of the patent open licensing system,summed up the characteristics of the patent open licensing system in national legal documents.Compare and analyze the application procedures,open license fee,incentive measures,withdrawal procedures and legal relief five core elements of the above patent open licensing system to further analyze the patent open licensing system.Through the international comparison of the patent open licensing system,the five major defects stipulated in the patentopen licensing system in the review draft are summarized: the content of the patent open licensing system is too simple to be examined,and the method for determining the open licensing fee is too simple and lacks certain Incentives to improve the enthusiasm of the patentee to apply for an open license,the unrestricted provisions of the withdrawal procedure have hidden dangers,and the rights of the open licensee are difficult to guarantee when patent infringement occurs.In response to these shortcomings,we further proposed five major suggestions for the content of the open license in the review draft: adding the corresponding review link in the open license application process,adding the method for determining the open license fee,and granting the patent to the patent holder for the open license.Incentives for annual fee concessions,restrictions on the withdrawal of open licenses,and certain right to sue for open licensees.Through the above suggestions,we will improve the patent open licensing system in China's review draft,reduce the cost of patent licensing,and improve the implementation rate of patents in China.