+
Click on the blue word to follow us
+ + + + + + + + + + +
I. Patent Opening License
Patent opening license means that the right holder voluntarily submits an opening license statement to the state patent administration department after obtaining the patent right, stipulating the license fee, which will be announced by the state patent administration department. During the period of patent opening license, anyone can implement patented technological achievements according to the conditions of patent opening license.
Second, China's patent open licensing system
Articles 50 to 52 of the latest version of the Patent Law are the terms of patent opening license:
Article 50 Where the patentee voluntarily declares in writing to the patent administration department of the State Council that he is willing to license any unit or individual to exploit his patent, and specifies the payment method and standard of the license fee, the patent administration department of the State Council shall make an announcement and implement the public license. Where a patent for utility model or design applies for a public license statement, a patent evaluation report shall be provided.
Where the patentee withdraws the declaration of opening license, it shall make a written statement and make an announcement by the patent administration department of the State Council. The withdrawal of the statement of open license through public announcement shall not affect the effectiveness of the previously granted open license.
Article 51 Any unit or individual willing to exploit a patent with an open license shall notify the patentee in writing and obtain a patent exploitation license after paying the license fee according to the published payment method and standard.
During the implementation of the open license, the annual patent fee paid by the patentee shall be reduced accordingly.
The patentee who implements an open license may grant a general license after consultation with the licensee on the license fee, but shall not grant an exclusive or exclusive license to the patent.
Article 52 Disputes arising from the implementation of the open license shall be settled by the parties through consultation; Unwilling to negotiate or failing to do so, they may request the administrative department for patent in the State Council for mediation, or bring a suit in a people's court.
1. The patent opening license statement shall be understood as an offer, and the payment method of the license fee shall be specified. This is similar to the offer in China's contract law. After the patent opening license statement is registered and announced by the patent administrative department of the State Council, any unit or individual who implements the patent and notifies the patentee in writing can be understood as a promise.
2. Open patent license cannot be simply equated with general license. Patent open license should belong to the category of general license and should be voluntary rather than exclusive or exclusive license. However, patent opening license cannot be simply equated with general license, because after the patent opening license statement is registered and announced by the patent administrative department of the State Council, the patentee will have no right to choose the licensee and change the license conditions, which is different from general license. In general license, the patentee can decide whether to license, who to license and the license conditions through consultation.
Third, the characteristics and advantages of the patent open licensing system
1. Promote the docking of patent licensing information. China National Intellectual Property Administration's licensing information announcement has built a bridge of information communication between licensor and licensee, which is beneficial to the docking of supply and demand.
2. Improve the negotiation efficiency of patent licensing. The supply and demand sides can reach a license in a simple way, avoiding complicated negotiation links and reducing the license cost.
3. Reduce the transaction risk of patent licensing. The open licensing system establishes the licensing information disclosure and dispute mediation mechanism, so that the licensee can fully understand the licensing conditions and other related situations in advance.
Four, the type of patent used in the patent open licensing system
The patent open licensing system also includes three types of patents: invention patent, utility model and design. After obtaining the patent right, the obligee may voluntarily submit a public license statement to the state patent administration department, stating the license fee, which shall be announced by the state patent administration department. During the period of patent opening license, anyone can implement patented technological achievements according to the conditions of patent opening license. And put forward a public license statement for utility model and design patents, it shall provide a patent evaluation report.
In short, the patent open license is a voluntary license, which fully embodies the voluntary nature of the patentee. Its application and withdrawal are carried out in full accordance with the wishes of the patentee, and the user of the open license can be anyone. Open licensing is like labeling a patent as open use, which can greatly reduce the difficulty of licensing negotiation and the transaction cost of patents.
+ + + + +