专利当然许可制度的合理性探析(上)

Exploratory Analysis in Regard to Rationality of License of Right

专利当然许可制度在英国和德国取得良好效果,主要体现在申请当然许可登记的专利总量大、登记专利获得有效的实施等方面,而这根源于专利当然许可制度的合理设计。以税费减免和专利信息免费推送等国家优惠政策换取专利权人手中的排他性独占权,在保障专利权人利益的前提下扫除阻碍专利实施的障碍,这符合专利权的本质,构成当然许可制度合理性的基础。而专利当然许可制度对合同自由原则的遵循,以及对合同正义理念和效率价值的追求,则进一步强化了当然许可制度的合理性基础。因此,我国拟在《专利法》第四次修订中构建当然许可制度是可行的,但是其合理性还有待于加强。

Patent license of right system has obtained good results in the UK and Germany, which are mainly reflected in the large application amount of patent registration with license of right, and also in its effective implementation, etc. The reasonable design of the patent licence of right system can be the fundamental reason. Based on the government＇s preferential policies, patent holders enjoy reduction of related fees and free promotion of the patent, if they give up their exclusive right on patent; meanwhile, barriers in the process of patent implementation are removed while patent holders＇ right are guaranteed, these practices are all in line with the nature of the patent right, and have formed the basis of rationality of license of right system. Patent license of right system follows the principles of freedom of contract, as well as of justice and efficiency value of contract, which further reinforce the rational basis of the license of right system. Therefore, it is feasible for China to build the license of right system in the fourth amendment to the Patent Law; however its rationality needs to be strengthened.