Research On The Protection Of Public Domain In Patent Law

The public domain of Patent Law refers to the creation not protected by patent law and some aspects of the effectiveness of patent right which are not as effective as those of patent law.Anyone can freely use the invention and creation according to the law and the knowledge domain composed of the social and public interests generated by the invention and creation.Public domain is the premise and basis of innovation as well the fundamental purpose of latent laws.It’s of great significance to have a deeper understanding on value structure of intellectual property law and to grasp the essence of interests balance mechanism.The arrival of knowledge and economy era causes shock to intellectual property system.Adapting to the reform,intellectual property laws goes on the expanding road,especially the patent expansion,which strikes extremely fierce.This expansion has already done harm to public interests even hit a human ethic bottom line,violated the basic human rights of developing countries causing the urgency of the public domain protection problems.The increasingly obvious trend has caused scholars’ sensible reflection on the intellectual property system,and to restate the necessity of the public domain so as to provide theoretical weapons to deal with the irrational expansion of the system,restore the balance of interests due to the system,and protect the public domain in the patent law.This paper is based on the intellectual property system expansion background mentioned above,selects the patent law as a specific entry point,analyzes the current public domain protection problems,as well discusses the public domain protection measures in the patent law.Chapter 1 is an overview of the public domain in patent law,and starts with the introduction of the historical development of the "public domain",and defines the definition of the public domain in the patent law.Taking China as an example,the scope of the public domain in the patent law will be analyzed.This scope comprises with two parts,one is the creation which is not protected by patent law,the other is some aspects which are beyond the effect of patent right.In chapter 2,the author summarizes the problems faced by the protection of public domain in current patent law,describes the specific manifestations of patent expansion encroaching on public domain,such as the longer duration of protection,the wider theme of patent,and introduces how the impact of sharing concept highlights the insufficient inclusiveness of current public domain and the spontaneous response of private forces in practice,in order to illustrate the public domain is suffering from the crisis of encroachment.In chapter 3,the author analyses the reasons for the encroachment of the public domain,and holds that it is the result of a combination of many factors,including the influence of the adaptable change of the patent system and the inherent focus of the system itself.In conclusion,there are four points: one is that the public domain has inherent "public characteristics",the other is that the patent right has natural expansibility,the third is the lack of the concept of protection of the public domain in legislation,and the fourth is that the public domain has inherent "public characteristics".Legislation lags behind the expansion of patent rights.In chapter 4,the author takes the United States as an object,the radical and drastic expansion of patent right began in the United States since the 1980 s.Therefore,taking the United States as an object of study abroad,this paper explores and summarizes the practical experience of public domain protection in the United States patent system and its enlightenment and reference significance to China.It is believed that the dynamic protection of public domain should be closely combined with the reality of the country.In chapter 5,the author aims at the existing problems in the protection of public domain,combining with the situation of our country,and from the perspective of balance of interests,puts forward relevant countermeasures to improve the protection of public domain in our patent law.I think that the legislative aspect should be based on the original rights restriction system,and build a perfect legal system for the protection of public domain;the law enforcement aspect should give full play to the patent office as the limit of rights.In addition,the government should guide and promote the development of knowledge-sharing model.At the same time,it should actively participate in international legislation on intellectual property rights and limit the pace of patent expansion at the international level.Promote the fairness and rationalization of patent law rules at the international level,and strive for buffer space for domestic legislation,which is more conducive to their owneconomic and social development.