Legislative thinking on Improvement of Patent Compulsory License System in China
|School||Hunan Normal University|
|Keywords||patent compulsory license TRIPS agreement|
Patent compulsory licensing system is not only an important part of the patent law, but also in the TRIPS agreement and international treaties important content one.China’s current Patent Law provides patent compulsory licensing, did not fully use the space provided by the TRIPS agreement and the relevant international treaties, and some requirements are too strict, even beyond the requirements of the TRIPS agreement, compulsory licensing system can not lead to China’s patent play a full protection of the public interest, to limit the patentee to abuse the rights of the efficacy. With the continuous development of the socio-economic,patent compulsory licensing system for the purpose,the implementation of reason and the program are also changed.However, our patent compulsory licensing system is still rigid, and did not make the appropriate changes as the situation changes. How to improve the patent system of compulsory licensing, to meet the actual needs of our society, become the common concern of China’s academic circles.Comparison extraterritorial patent compulsory licensing system and China’s relevant laws and regulations, analyze the current situation of China’s legislative, that our country patent compulsory licensing, exist the following three questions:First, the applicant subject qualification requirements are too strict; compulsory patent the license shall be grounds is too narrow; compulsory licensing procedures are too cumbersome.About summed up the problems, the article suggested from main body, object and procedures in the three aspects to perfect legislation.Generalize for:deleting"the implementation of the provisions of the conditions of widening subject qualification;adding" government use" and" environmental protection use" and other public non-commercial use and other ways to increase the reason for application;Changing the judicial proceedings for administrative reconsideration, stipulating the compulsory license effective time to simplify the application procedures.Finally, modify the corresponding law.