Study On Patent Open Licensing System

The Patent Law of 2021 introduced the patent open licensing system for the first time,the purpose of which is to improve the implementation rate of patents,wake up the "sleeping patents" and promote the transformation of scientific and technological achievements.The patent open licensing system has already formed a more mature model in foreign countries,and there are many mature experiences in both theory and practice,which are worthy of our learning.At present,our primary task is to combine China’s national conditions and link the patent open licensing system with China’s current actual situation,so that it can be deeply rooted in our soil and really work.This article discusses the current patent implementation situation in China,and at the same time draws on the experience of overseas legislation to conduct targeted research and try to make suggestions for the improvement of China’s patent open licensing system.This paper is structured in four parts:In the first part,the concept of patent open licensing is explained,and the differences and connections between patent open licensing,compulsory licensing and voluntary licensing are explored,while a brief introduction to our system is given and the main controversies are clarified.In the second part,the issue of royalty in open licensing system is discussed in detail.Firstly,the nature of royalty is clarified,and the offer theory and invitation theory are discussed and analyzed.The introduction of negotiation in the new Patent Law is affirmed,and the right of price adjustment is given to both parties to further refine this provision.In the third part,we discuss the infringement remedy during the open license period.It is clarified that the licensee should have the independent right to sue,so that it can effectively defend its rights and interests.The conditions of application and justification of the injunction are discussed and analyzed,and the justification of the injunction system is affirmed.In addition,we discuss the damages remedy,and discuss the reasonableness and operability of several ways to calculate the amount,so as to prepare for the recommendations of China’s patent open licensing system in the later part.In the fourth part,by comparing with the patent open licensing system of other countries and combining with the current patent implementation situation in China,suggestions are made for China’s patent open licensing system.Firstly,in the determination of the license fee,the parties are allowed to negotiate first,and the administrative department will determine it when the negotiation fails.Secondly,to clarify the infringement remedy during the open license period,to determine the conditions for the application of the pre-litigation injunction,to optimize the calculation of damages,and to apply punitive damages when the conditions are met.Third,other aspects of the proposal.These include refining the criteria for annual fee reduction and reimbursement,refining the conditions for withdrawal of license statements,and clarifying the reporting obligations of licensees.