绿色技术专利权社会化:缘起、表现、争议与出路

The Socialization of Green Technology Patent:Origin,Performances,Controversies and Solutions

绿色技术专利权社会化以公权力对私权的干预为核心,它克服了传统专利权限制理论在解决绿色技术专利权与环境公共利益冲突时的失灵问题,还为基于环境公共利益而对专利权进行干预的制度与实践提供了理论解释。对绿色技术的专利申请提供加速审查服务、以继续支付许可费替代停止侵权的判决、企业自愿的绿色技术专利共享以及环境行政权力对专利权的间接干预都是绿色技术专利权社会化在实践中的具体表现。然而,既有的实践面临着正当性与合理性的争议,需要通过完善相应的制度和机制予以消解,继而为绿色技术专利权社会化提供有效的路径和方案。

The socialization of patent right for green technology takes governmental intervention on private right as its core content. It overcomes the failure which occurs when traditional patent limitation theory is used to solve interests conflict between the green patent owner and the public, and also works as a theory model which helps understand and guide the current practices of governmental intervention on private patent right for the sake of environmental public benefits. Practically, the socialization of patent right for green technology is embodied mainly as four aspects： fast track for green technology patent application and examination, infringe- ment injunction replaced by on - going royalties, voluntary green technology shared among companies, and indirect intervention made by environmental authority. However, all those practices are facing with hot debates targeting on their legitimacy and rationality. It is necessary to make green adjustment of patent systems and establish supportive measures, which are considered to be the effective ways and plans of the socialization of patent fight for green technology.