1Yuan Zhengfu, Research on Implied Patent License System (A), in the Patent Law Research, 2010, and (C) in the Patent Law Research 2011.
2Ma Yuan, Chinese Civil Law Textbook, Chinese University of Political Sciences and Law Press, 1996, P. 105.
3Article 56 of the General Principles of the Civil Law: a civil juristic act may be in written, oral or any other form. If the law stipulated that a par- ticular form be adopted, the stipulation shall be observed; and Article 10.1 of the Contract Law: the parties may, when concluding a contract, use written, verbal or any other form.
4This can be traced back to 1815, and Cardiner v. Grew is the earliest case in which the implied terms were established.
5Zhai Yunling and Wang Yang, Probing into Legal Issues of Implied Terms, the Jurisprudential Forum, 2004, issue 1.
6Article 61 of the Contract Law: for a contract that has become valid, where the parties have not stipulated the contents regarding quality, price or remuneration or place of performance, or have stipulated them unclearly, the parties may supplement them by agreement; if they are unable to reach a supplementary agreement, the problem shall be deter- mined under the relevant clauses of the contract or according to trade practices. Article 7 of the Supreme People's Court's Interpretation (II) of Several Issues Relating to Application of the Contract Law: the People's Court may determine, as the trade practices, the following circumstances if they are not contrary to the mandatory provisions of the law and ad- ministrative regulations: (1) practices that are generally adopted in the place of trade, or in a region or industry or which the other party of the trade knows has reason to know during the conclusion of the contract; and (2) customary practice both parties often adopt. Regarding a trade practice, the party making the claim shall be under the burden of proof. For another example, Articles 62, 133, 139, 141, 142, 144, 145, 150, 153, 154, 168, 169 and 371 all contain substantial contents of implied terms.
7De Forest Radio Telephone co. v. United States, 273 U.S.236 (1927).
8Article 69.1 of the Patent Law provides: none of the following shall be deemed an infringement of the patent right:.
