论“无效专利”的经济危害及法律规制

On economic harm and legal regulation of invalid patents

专利权是一种合法垄断权,然而伴随知识产权制度的实施,实践中出现了大量的"无效专利",表现为通过欺诈专利局取得专利,授权专利品质低劣,或包含的专利请求过于宽泛。专利法及其实施细则以及反垄断法对"无效专利"的现有规定存在诸多不足。中国可以借鉴美国的立法及司法经验,进行一定的本土化改造,从而完善本国专利法及反垄断法相关规定。

Patent right is a kind of legal monopoly right. However, with the effective implementation of the intellectual property system, there have been a lot of invalid patents in practice, manifesting as poor-quality patent, or including too broad patent requests, or obtaining patent licensing by cheating the patent office. There exist many deficiencies in the current provisions of patent law and implementation rules, and the anti-monopoly law on invalid patents. China could learn the legislative and judicial experience from the United States, and improve the related provisions of patent law and anti-monopoly law according to the real conditions.