我国共有专利行使规则的不足与再设计

Defects and Redesign of Joint Patent Exercise Rules in China

共有专利是指由两个或两个以上的主体对同一专利共同享有的排他权利。基于权利主体的多元性,共有专利的行使往往具有特殊性。我国共有专利行使规则的不完善导致了共有专利人之间的利益冲突,被许可人的权益受损,交易成本增加,阻碍了共有专利的转化实施。为解决这些问题,我国《专利法》应结合《民法典》的有关规定完善共有专利行使规则:共有人对共有专利没约定为共同共有的,应视为按份共有;自行实施和普通许可他人实施共有专利的共有人履行通知义务即可,排他许可和独占许可他人实施的,则需要其他共有人同意,自行实施所得和许可费用应在共有人之间合理分配;应有份额转让于共有人之外的第三人的,需要其他共有人同意,且其他共有人享有同等条件下的优先购买权;不论是共同共有还是按份共有,共有专利的转让,均需全体共有人的一致同意。

A joint patent refers to the exclusive right shared by two or more subjects in the same patent,based on the diversity of subjects of rights,the exercise of joint patent is always special.The imperfect rules of joint patent exercise in China lead to the conflict of interest among joint patentees,the loss of rights and interests of licensees,and the increase of transaction costs,which hinder the transformation of joint patent.China’s Patent Law should combine the relevant provisions of the Civil Code to improve the rules for the exercise of joint patents:If the co-owners don’t agree on the joint patent as joint ownership,it shall be regarded as co-ownership by shares.Where a joint patent is to be exploited by itself or by a ordinary license,the co-owner shall perform the obligation of notification,while the sole license and exclusive license shall require the consent of the other co-owners,and the income from the self-exploitation and the license fee shall be reasonably distributed among the co-owners.Where there is an assignment of the due shares to a third party other than the co-owners,consent of the other co-owners is required,and the other co-owners shall enjoy the pre-emptive right under the same conditions.Whether jointly owned or by shares,the transfer of joint patent requires the unanimous consent of all co-owners.