Research On The Implementation Of China’s Patent Open Licensing System

In today’s world led by scientific and technological innovation,the total amount of patent authorization in China has been firmly ranked first in the world.However,due to various factors,the problem of low patent conversion rate has always been a pain point in China’s patent work.To break the supply side and demand side cannot balance the trade barriers,promote the effective link of patent information,patent conversion rate,and improve the patent innovation vitality,on June 1,2021 formally implemented the new revision of the patent law of the People’s Republic of China increased the open patent licensing system,to awaken the patent market to a large number of existing patent of ‘sleeping’.However,as a newly introduced patent licensing system,there is no experience to follow in the implementation and operation of patent opening licensing in China.Although the new Patent Law has been implemented for more than half a year,the patent opening licensing has not been really implemented because the relevant supporting implementation rules have not been issued.Therefore,it is necessary to conduct an in-depth study on the difficulties encountered in the implementation of patent licensing in China,in order to refine the relevant rules,boost the efficient implementation of the system,and provide institutional support for high-level innovation and high-quality development in China.In addition to the introduction and conclusion,this paper mainly includes the following four parts.The first part expounds the basic theory of patent opening license.Patent open license is still patent general implementation license in essence.However,it has the characteristics of voluntariness,efficiency and openness which are different from the existing patent licensing system,and together with the compulsory patent licensing system,it constitutes the special licensing system for patent implementation in China.In terms of system function,patent opening license will promote the timely docking of patent information,improve the efficiency of patent license negotiation,and reduce the transaction risks in patent license.The second part analyzes the difficulties in the implementation of China’s patent licensing system.Through sorting out the existing laws and regulations and other documents,the implementation rules of the patent opening license system are still lacking,resulting in the system itself failed to really operate.But on the social level,universities and scientific research institutions and other units have a strong interest in the system,local governments for its implementation of a certain degree of exploration.The implementation dilemma of patent opening license system is mainly faced by the following four aspects:first,the market foundation of patent opening license implementation is not mature,and the operation and implementation of the system is not supported by the corresponding platform and mechanism,so the attraction is not strong;Second,the open license declaration rules are not perfect enough to properly protect the trust interests of potential licensees;Third,due to the difficulty of the patent subject to accurately evaluate the licensing fee and the possible unpredictable market changes,the pricing of the licensing fee lacks certain guidance and late adjustment mechanism;Fourth,there is no scientific interpretation of relevant rules for the settlement of subsequent open licensing disputes,so there is no unified judgment standard on the application of damages rules.The third part makes a comparative study of the patent licensing system outside China.Britain,Germany and other countries have established patent databases for the implementation of open patent licensing,and defined the corresponding annual fee reduction ratio,which has achieved good implementation effects.In terms of declaration rules,all countries stipulate preconditions for the declaration of open license,and do not allow the patent declaration of open license with exclusive license.The United Kingdom also provides for the circumstances of withdrawal under different conditions,and the need to pay an annual patent fee.The pricing of royalty is determined by the patent administration department in Germany and can be adjusted after a certain period of time.The British court also formulated corresponding standards for the royalty of patent opening license in various industries.In addition,the United Kingdom also stipulated the application of pre-action injunction,and granted licensees the right to Sue in their own name under certain conditions,and made clear the application of punitive damages in the calculation of the amount of damages for open license.The above implementation measures of patent opening licensing system in foreign countries can provide useful reference for China to strengthen the implementation of patent opening licensing system.The fourth part discusses the specific implementation path of China’s patent licensing system.How to improve the implementation of patent opening license system in China’s practice should focus on the following ways: First,build a national patent information service platform on the basis of patent information market,integrate patent information retrieval and analysis,special patent database,online patent trading and other functions,improve the patent information disclosure mechanism after the declaration,implement different policies for different patent subjects annual fee reduction;Second,it clearly lists the cases of patent applications that are not accepted and reviews the patents that are withdrawn;The third is the pricing rules for the usage fees,following the principle of fairness and reasonable non-discrimination,following the practice of the British courts to issue pricing guidelines,reasonably guiding the market pricing,and adding price adjustment rules under the circumstances of changing circumstances;Fourth,in the process of dispute settlement,further standardize the mediation of the patent administration department,give the licensee the qualification of the subject of litigation under certain circumstances,restrict the application of the pre-lawsuit injunction,and take the amount of the damage compensation of the open license as two times of the royalty.