On The Improvement Of China’s Patent Open Licensing System

Patent opening license is an initial attempt in patent law to promote the implementation of patent transformation.The amount of patent applications ranked first in the world for many years in a row,but the conversion rate remained low.In order to meet the needs of economic and technological development,patent innovation achievements need to be transformed into real productivity.It is of great benefit to both the country and the society to deeply explore the potential value of patents and bring innovative achievements into full play.In this context,our country introduces the patent open license system which has been operating for many years abroad in the basis of subbing,providing a more convenient mode for the implementation of patent authorization.At present,the general framework of patent open license system has been built,but some specific provisions of the system still have some problems,need to be further improved.The central content of this paper is divided into four parts:The first is to explore the nature of patent open license system.The most distinctive traits of the patent open license system is that the patentee voluntarily relinquishes patent exclusivity,a new licensing model that allows anyone to use the patented technology.Under this model,anyone can be a potential licensee and use the patented technology after paying the license fee according to the license fee payment method and standard set forth in the Open license Statement.Improving patent conversion rate and reducing transaction cost are the two main values of patent open licensing system.For open patents,the relief rule of patent is no longer the strong protection mode under the property rule,but the limited protection provided by the liability rule.This mode in which the patentee chooses the liability rule voluntarily is called the autonomous liability rule.The second is the analysis of the problems in the design and operation of the patent open license system.Taking the legislative provisions of our open patent system and pilot work as the perspective,targeted analysis of the existing problems in our system design and operation,this part of the core content of this topic research.At present,the implementation of patent open license system is in the pilot stage,and the focus of the implementation work is mainly concentrated in the university level.In the system,there are four problems: unclear preferential regulation of annual fee,unclear function regulation of administrative department,rigid formation mechanism of license fee and imperfect legal protection.The third is the comparative analysis of patent open licensing system.Through the comparison of patent open licensing system provisions of representative countries of common law system Britain and the representative country of civil law system Germany,it is found that there are many institutional arrangements for the change of patent license fee in Germany,the objection procedure in the opening of patents in Britain and the litigation rights of the licensee.The procedure not only provides a fault-tolerant mechanism for the wrong pricing of the patentee but also makes the payment standard of the license fee adapt to the changes of the market.The objection procedure reduces the examination cost of patent administration department and can avoid the disputes caused by other interested parties in the process of open patent implementation.Giving the licensee independent litigation rights is more conducive to the fight against patent infringement,which promotes the implementation of patents and strengthens the protection of patents.The fourth aspect is refining annual fee exemption rules,strengthening the service function of patent administration department,adjusting patent opening license fee pricing rules,improving the legal guarantee mechanism of patent opening license.The corresponding suggestions are put forward to improve our patent opening license system.