Research On The Related Issues About The Claim Of Temporary Protection Of Invention Patent In China

The period of protection of the patent right begins from the date of filing,from which the law provides protection for the patent application.Because there is no such concept as "temporary protection" in the law,Chinese scholars have always used "temporary protection" to refer to the protection of the application for invention patent stipulated in article 13 of the patent law of China,and judicially "dispute over the use fee of the temporary protection period of invention patent" is considered the cause of action.The basic content discussed in this paper is exactly related to article 13 of the patent law.In order to maintain the consistency of the reference and avoid causing unnecessary confusion,the protection granted to the applicant of the patent for invention in article 13 of the patent law is called the claim of temporary protection for the patent for invention.The temporary protection period of patent for invention refers to the period from the date of publication of the patent application to the patent authorization date.During this period,if a third party exploits the invention for which a patent is being applied without permission,the patent applicant may require the third party to pay an appropriate fee,but only after the grant of the patent right may the applicant exercise the right of provisional protection for the patent for invention.Article 13 and article 68 of the patent law are the direct legal basis for the applicant to exercise the claim of temporary protection.However,the legislation of patent temporary protection system in China is too general and not operable,which leads to some controversial problems in theory and practice.The first controversial question is how to understand the legal nature and its basic rights of the claim of temporary protection.The main viewpoints are as follows: the basic right of temporary protection claim is the right of expectation;The basic right of the claim of temporary protection is the debt of unjust enrichment;The basic right of the claim of temporary protection can be the right of expectation or the debt of unjust enrichment;The claim of temporary protection is an expectant right,but not an independent right.This paper suggests that firstly,the claim of temporary protection is an independent right.Second,the basic right of the claim of temporary protection is neither the right of expectation nor the debt of unjust enrichment,but the direct creation of law.Another controversial issue is how to understand the relationship between the exercise of the claim of temporary protection and the exercise of the patent right.This problem is reflected in that in the interim protection period,the patented products are manufactured,saled and imported.Then after the patent registration,whether the people who uses,promises to sell or sell the patented products without the authorization of the patentee commit a violation of patent rights? There are different opinions on the answer to this question.The first is the infringement of patents for the use,sale by promise,or sale.The second view is that the use,promise of sale,and sale are not patent infringement.The third view is that the products manufactured,sold or imported in the interim protection period shall be regarded as the products licensed by the right holder after paying the appropriate fee.After the registration of patent right,using,promising to sell and selling the products are in line with the principle of exhaustion of patent right without infringing the patent right.The fourth view is that the use,promise to sell,and sale of the patented product does not infringe the patent right by paying an appropriate fee.Otherwise,the patent right will be infringed.This paper endorses the first view.At last,this paper gives some suggestions to perfect the claim of temporary protection.First,make it clear that the exercise of the claim of temporary protection does not impede the exercise of the patent right;Secondly,make it clear that the executor clearly knows the application of one of the conditions the claim of temporary protection;Thirdly,make it clear that the interested party has the qualification of the litigation subject of the claim of temporary protection.