Legal Research On Patent Open License System In China

Patent open license,also known as patent license of right,has the main characteristics of openness,semi voluntary and economy.In the patent open license system,the license statement is the pre procedure for the subsequent implementation of the system.However,at present,the legal nature of the patent opening license declaration and the determination mechanism of the license fee in China’s patent law are unclear and controversial: first,there are differences between the legal attribute of the patent open license statement as offer or invitation to offer;Secondly,there are different understandings on the determination mechanism of license fee in the patent open license statement;Thirdly,there are different opinions on the relationship between the royalty determination mechanism and the nature of open license statement.First of all,the essence of the patent open license system is the autonomous responsibility rule-the patentee has largely abandoned the exclusivity of the patent right and retained more the right to obtain reasonable remuneration.On this basis,In combination with the provisions of Article 50 of China’s patent law,we can draw the legal attribute of the offer of patent open license statement: it is an externalized public offer,which contains specific effect significance and specific content.Secondly,in the patent open licensing system,the determination of licensing fees should be introduced into the negotiation process,which is the inevitable requirement of contract justice and contract freedom,which is conducive to the formulation of reasonable licensing fees,reduce social costs,and meet the rights and interests of both parties at the same time.Finally,the introduction of the negotiation procedure into the determination process of the patent open license statement does not affect the legal attribute of the offer of the patent open license statement.Based on the principle of supplement of the contract,the patent open license royalty can be determined according to the law or through negotiation between the two parties after the conclusion of the patent open license contract.In addition,the patent open license system is an imported system,which is conducive to the construction of a patent open license system with Chinese characteristics.After investigation,foreign countries have established a close relationship between the determination,change and dispute resolution mechanism of license fee and the legal attribute of patent open license statement.Therefore,this paper systematically studies the legal nature of China’s patent open license statement,and finally defines the legal nature of its offer.It believes that both parties can negotiate the pricing process of license fee,and creatively puts forward that there is no need to pay license fee,clarify license fee or wait for the final determination of license fee for the establishment or effectiveness of patent open license contract,It aims to minimize the transaction cost of patent open licensing.At the same time,this paper believes that China’s patent open licensing system should establish a price change mechanism of licensing fees,and build a diversified licensing fee dispute resolution mechanism of administrative mediation,administrative adjudication and judicial review,so as to better provide institutional guarantee for continuously stimulating China’s innovation power.