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Dependent patent compulsory licensing

Author: LiuBo
Tutor: ChenNaiWei
School: Fudan University
Course: Legal
Keywords: Patent thicket Dependent patents Compulsory licensing License fees
CLC: D923.42
Type: Master's thesis
Year: 2011
Downloads: 47
Quote: 0
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Abstract

If too many people can use a resource without considering its maintenance, the majority of people will choose to over-utilization without maintenance result resources are depleted due to over-exploitation and everyone can not continue to take advantage of. Set of rights is an important measure to solve the tragedy of the commons (Tragedy of the commons), and private owners based on self-interest is often more inclined to rational use and development of its control over the resources. The patent system is a countermeasure to solve the tragedy of the commons problem in the field of science and technology. Private rights over division will also have a problem: the right to set too crushing cause in accordance with the established trading rules, transaction costs are higher than the income of the transaction, the transaction is hindered, the so-called anti-tragedy of the commons (Tragedy of the anticommons) . Anti-tragedy of the commons in the field of patents patentee sometimes hinder the exercise of their rights of new knowledge and technology promotion. Such use contrary to the patent system, the purpose of the patent, constitute an abuse of the patent system. The result of this abuse is aptly called patent thickets (Patent thicket). Compulsory licensing system (Compulsory licensing) is a solution of the balance of patent rights and interests of others. Into account to avoid foreign enterprises to use the patent to block domestic enterprises and to avoid domestic enterprises due to the patented technology can be abused foreign enterprises not move forward two objectives, to strengthen the dependent patent compulsory licensing (Dependent patent) is a solution. Compulsory licensing of patents, also known as non-voluntary license, the patent authorities in a country without the consent of the patentee, under certain conditions, to allow others a legal system of the patented technology. Enactment of the first patent law on the establishment of a compulsory licensing system for a long time, the compulsory licensing of the patent system in China has been for people concerned about the implementation rate has been zero. Until after the signing of the TRIPs Agreement, compulsory licensing only became widely discussed topic of the international community, this is because in comparison to countries previously had fuzzy, vague and entirely inconsistent implementation of state, made strict restrictions and provisions of the agreement on compulsory licensing. The patent system plays an important role in the development of science and technology, but sometimes the abuse of the patent system is likely to prejudice the purpose of the patent system to realize the consequences. This article briefly describes the value of the patent system and the mechanism of action, the provisions on the concept of compulsory licensing and law, as well as China's legislation, national conditions and should take policy, the operational aspects of the proposal and the implementation of the dependent patent compulsory licensing . This article is divided three parts of the Introduction, body, and conclusion. The text is divided into four sections: The first section describes the causes of the patent thicket and several solution. This section first reviews the patent thicket causes of the problem, followed by analysis of the cross-license (Cross patent) patent pool (Patent pool) and - embrace the sub-license (Package license), standardization (Standardization), and the concept of compulsory licensing and the pros and cons. Section II briefly the history of the development of the world patent system and the attitude of compulsory licensing, followed by analysis of the situation in China, pointed out that at this stage of China in terms of large-scale implementation of the compulsory license is necessary. Section III outlines the concept of dependent patent compulsory licensing system for the operation of the provisions of international law and domestic law as well as judicial and administrative fields. This section, starting from the analysis of the provisions of international law, to brief Chinese dependent patent compulsory licensing legislation changes, and the Chinese courts attitude, and administrative departments of the dependent patent compulsory license for. Section IV dependent patent grant a compulsory license conditions and license fee calculated suggestions. This section first pointed out that no matter how good the system is worthless if it is not the practice. Chinese patent compulsory licensing system is not a system design issue, but the system did not implemented, the patent administration department should adopt a more open attitude more than granting a compulsory license. Secondly dependent patent compulsory license granted conditions that \The subject matter. Followed by analysis of the basis and method of calculation of the license fee. Then briefly several basic patents - and given a compulsory license and compulsory cross-licensing issues. Finally, the conclusion of this article: to make good use of the dependent patent compulsory licensing system could become a breakthrough technology upgrade. Pressure imposed by developed countries, China should be vigilant, never compromise on the issue of dependent patent compulsory licensing, to avoid repeating Japan's mistakes.

Dependent patent compulsory licensing

Abstract

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