Research On Patent' Open License

In order to resolve the lack of patent conversion mechanism and the Information asymmetry,the open license system was first introduced in the fourth revision of the Patent Law to improve the low patent conversion rates in China.Although the system has been running for years in foreign countries,it is the first time that the open license system is introduced into China.However,there is no set of general rules of open license,and there are big differences among the countries.If all goes well,the Draft Amendment to Patent Law will come into effect in end of 2019.There are only six months left to improve the legislation.As a result,drawing on international experience to localize open license system is imperative for current academic research.Based on the discussion on the current status of China's patent system implementation,this dissertation contends that it is necessary to introduce the open license system Furthermore,by comparing the provisions of open license in foreign legislation with the provisions in current draft,some suggestions will be made to improve the legislationThis dissertation contains three chapters:The first chapter will be the introduction of the open license system.This chapter will begin with the overview of open license system to define its concept,to subsequently analyze the theoretical structure of open license from patent license theory and contract law basis.Then,this chapter will argue that it is necessary to introduce the open license system into China.Firstly,the current status of China's patent operation provides the legislative motivation for introducing the open license system.Secondly,the insufficiency of patent implementation,the lack of patent of conversion mechanism and the shortage of attention to the patent implementation hinder the patent law system from fully functioning.Thirdly,by comparing the open license with ordinary license and compulsory license,the special nature of open licenses is demonstrated.Therefore,the introduction of an open license system can be introduced from the institutional point of view:To improve China's current patent licensing trading mechanism.On this basis,this fourth revision of patent law introduced an open licensing system.Finally,this chapter interprets the provisions of the Patent Law draft on the open licensing system.The second chapter will be the analysis of the open license system.By comparing the provisions of the patent law draft with foreign legislation,there are five main differences:(a)the lack of application conditions for the open licensing system;(b)the open license statement must clear the open license fee;(c)the lack of incentive policy;(d)the differences in application of the injunction;(e)the differences in dispute resolution method.And carry out a specific analysis of each item.Then,this chapter argues that there are some problems in the following items:(a)the lack of incentive policy may weaken the attraction of policy to patentee;(b)the applicable conditions of the injunction need to be refined to avoid the risk of injunction abuse;(c)the scope and methods of dispute resolution need to be reconsidered.The third chapter will be suggestions for strengthening the open license system.With regard to the issues in the current draft,this chapter proposes corresponding suggestions:(a)Introducing the maintenance fee reduction policy,granting 50%of the patent maintenance fee reduction to the patentee.Consistent with the incentive policy,when the patentee withdrawing the patent open license,they need to repay the amount of patent maintenance fee reduction.(b)The conditions for the application of the injunction should be refined.Once the licensee in the open license pays the open license fee,the patentee may not request an injunction.(c)Where the parties fail to reach an agreement on the patent fee,the patent administrative organ under the State Council shall adjudicate.Furthermore,in order to promote the enforcement of open license system,some implementation suggestions will be made:the patent administrative organ should take the responsibility to make sure the open license system can be fully enforced,providing standard open license document and calculation method of open license fee,establishing a specific open license debate to promote information-sharing.