专利当然许可的理论分析与制度构建——兼评《专利法修订草案(送审稿)》的相关条款

Theoretical Analysis and System Construction of the Patent License of Right

为提高专利转化实施率,我国《专利法修订草案(送审稿)》首次引入专利当然许可制度,但在具体条文设计上仍然存在制度不完善、缺乏可操作性等问题。考察专利当然许可的立法动因与制度功能,比较国外专利当然许可的有关规定,建议我国应在当然许可的生效要件、年费优惠政策、当然许可期间的侵权救济以及当然许可的撤回等方面予以完善。

In order to improve the conversion rate of patent, the patent license of right system is increased by the draft amendment of patent law. However, several clauses still need to be revised in term of system and operability. Investigating the legislation motive and system function of the patent license of right, by comparing the relevant provisions of the foreign patent license of right, there are still room for improvement for the drafted provisions with regard to the effective requirement, annual patent fee exemption and the remedies for patent infringement.