Study On The System Of Invention Temporary Protection

It has been too simple on the China’s provisions of temporary protection.Before patent authorization,the proposer of patent only has right to request payment of appropriate fee.The standards of appropriate fee and the extent of temporary protection have not been clearly stipulated in judicial practice.The Supreme People’s Court No.20 case eliminates the ambiguity in the application of the system,but also makes the temporary protection weaker.This paper starts from the system of temporary protection of invention patents,points out that the right to claim reasonable expenses during the period of temporary protection originates from the right of expectation,doubts the legal interpretation of unjust enrichment.Using the empirical analysis,this paper reexamines the No.20 case from the perspective of system interpretation,and further points out that the intertemporal implementation behavior is allowed makes the temporary protection weaker.Through the empirical analysis,the paper points out that the appropriate fee and patent infringement damages are mixed.This paper selects the Asian countries represented by Japan,the American countries represented by the United States,and the European Patent Convention as the main objects of study.It points out that the practice of subsequent implementation behavior constitute infringement,and introducing the International Organization for Standardization patent license fee calculation method to determine the license fee are worth learning.The actul notice and substantially similar referee ideas in the American cases have a special reference value for the study of the temporary protection system of invention patent in China.This paper suggests that the temporary protection of invention patent should follow the principle of interest balance,and should make it clear that subsequent implementation behavior constitutes infringement,and allow qualified invention patent applications to be examined first.Starting from the patent open license system newly added in the patent law amendment(Draft)published in January2019,it is suggested to determine the appropriate fee by referring to the comparative license agreement of the United States.