Research On The Rules Of Patent Open License Royalties In China

The rule of patent open license royalties is a rule system including the determination rule,modification rule and dispute resolution rule of the license royalties.Perfecting the license royalties rules in China can guarantee the advantage of the system of patent open license and promote patent licensing transaction.The theory of balance of interests and the theory of autonomy limit of private rights provide the basis of law philosophy,and coase theorem and Pareto criterion provide the basis of law and economics.The value orientation of the rule construction is to give consideration to the autonomy of private rights and the intervention of public power,balance the play of market mechanism and the implementation of policy objectives,and the existing rules should be improved under the guidance of restraining transaction costs,ensuring fairness and rationality,and respecting the principle of autonomy of will.First,the existing rules for determination of license royalties have problems such as lack of operability in prior pricing and difficulty in ensuring the rationality of license royalties.It is necessary to improve the open license registration system and establish an open license database to improve the openness and transparency of information.Second,it is necessary to establish rule of modification to ensure the rationality and fairness of the license royalties,regulate the patent trading market,and protect the contractual freedom of the parties.In order to reduce the negative effects of license fee changes in three aspects: affecting the stability of declarations,breeding opportunistic behavior,and increasing transaction costs,specific rules should be designed,including limiting the conditions for changes,the subjects of changes,and clarifying the procedures and legal effect.Third,China adopts a license royalties dispute resolution rule based on independent negotiation,supplemented by administrative mediation and litigation,which conforms to the basic principle of respecting the autonomy of will.The method of administrative mediation should be adhered to,and a judicial confirmation system for administrative mediation agreements should be established to ensure the enforceability of mediation agreements,and at the same time promote the organic connection between administrative mediation and litigation.