| In order to promote the use of patents and give full play to the value of patents,China plans to add patent open license system in the fourth amendment of the Patent Law.The “Draft Amendment of the Patent Law” establishes the basic framework of the patent open license system through three provisions,but it is not detailed enough obviously as a new mode of patent license transaction.This paper takes the patent open license system as the research subject,try to expound the connotation of the system deeply,and put forward a few suggestions within the framework preset by the “Draft Amendment of the Patent Law” referring foreign legislation,in order to improve patent open license system of China.This paper is mainly divided into four parts:The first part of studies the basic theory of the patent open license.The patent open license is a license mode,in which the patentee declare to the competent department its willing of giving license to any entity or individual who agrees to the conditions in the declaration.The competent department would announce the declaration.Then anyone pays license fee can obtain a license and the patentee cannot refuse.Patent open license is voluntary and open.It is a general license in essence,and should be distinguished from patent compulsory license and patent implied license.The second part studies the patent open license system from the perspective of comparative law.The provisions on the patent open license system of several representative countries,such as Britain,France,Germany,Russia,and Brazil,all focus on the application conditions,the determination of license fee,the process of withdrawing and the preferential measures of patent annuity.There are both commonality and specialty between the provisions of these countries.The third part studies the legitimacy analysis of establishing the patent open license system of China.The open patent license system can increase the ways of patent license information disclosure,reduce the cost of patent license transaction,and improve the rate of patent conversion.From the perspective of legal theory,the establishment of the patent open license system is in line with the purpose of promoting innovation and economic development of the patent law,follows the basic principle of autonomy of will in civil law,and implements the fair value of law.The fourth part studies the suggestions of establishing the patent open license system of China.On the basis of the “Draft Amendment of the Patent Law”,it is necessary to clarify the application conditions,set up a flexible pricing mechanism for license fee and specify withdrawal provisions to improve the rules of implementation.In terms of the way of dispute resolution,the administrative adjudication on license fee should be allowed,and the situations should be clarified which pre-litigation behavior preservation cannot be applied.In addition,formulate measures could contribute to help the system work well,such as granting appropriate discounts of patent annual fee and creating a specialized electronic systems. |
