Source: Legal Education Network.
Keywords: Patent Law/Monopoly/Balance of Interests/Balance Mechanism
Abstract: Patent Law is an institutional arrangement to balance, select and integrate the monopoly interests of the patentee and social public interests in order to achieve a dynamic balance. It is a typical interest balance mechanism. The key of this balance mechanism is the balance between the interests of the patentee, the public interest and the broader public interest on this basis. In order to realize this balance mechanism, it is necessary to fully guarantee the public's legitimate access to patented technology. Therefore, in the system design of patent law, it is necessary to determine the appropriate and reasonable scope of patent protection, which is also the basis of constructing the interest balance mechanism of patent law. At the same time, the interest balance mechanism of patent law must solve the balance and coordination problem between patent technology monopoly and popularization and application. Patent law has properly solved this problem through its unique mechanism of encouraging invention and creation and restricting rights.
In the patent law, the interests of legal adjustment can be divided into two categories: the monopoly interests of the patentee and the interests of other stakeholders other than the patentee, of which the latter can generally be called social public interests. Like other intellectual property laws such as copyright law and trademark law, patent law is also an interest balance mechanism to coordinate and balance the interests of intellectual products. The patent system centered on the patent law is a legal system that "balances and coordinates the relationship among inventors, owners and inventors by stipulating their rights and obligations, so as to maintain the normal economic order, mobilize people's enthusiasm for invention and creation activities, and promote the rapid development of social economy and science and technology." [656] The key to this interest balance mechanism is the balance between the patentee's personal interests and public interests, as well as the broader public interests on this basis. Patent law is an institutional arrangement to balance, select and integrate the interests between the monopoly interests of the patentee and the public interests in order to achieve a dynamic balance. In essence, the patent law, like other legal systems, should "protect all social interests as much as possible and maintain a certain balance or coordination among these interests, which is consistent with protecting all interests" [2](P 14 1). The key to any successful patent system is to strike a precise balance between the exclusive right granted to the patentee and the public interest in an open and competitive market, that is, "the patent system needs to strike a balance between the interests of inventors and the interests of the general public" [3]. The essence of this balance lies in the protection of private rights of patent rights and the balance of interests between the public, including the competitors of the patentee, and the acquisition and demand of patent-based knowledge and information. China's patent case points out that the legislative purpose of the patent law is to "not only clarify the protected patent technology scheme, but also clarify the space where the public can freely use technology for invention and creation, and combine the reasonable protection of patents with providing full legal certainty to the public" [4].
In different countries and different periods, the balance between the patentee's monopoly interests and social public interests is emphasized, and the whole patent law is not limited to the balance between the patentee's monopoly interests and social public interests. However, this balance is still the core and the most substantial. Through a series of institutional mechanisms, especially monopoly and anti-monopoly, restriction and anti-restriction, the patent law generally maintains the balance between the monopoly interests of the patentee and the public interests. It is a dynamic balance in operation, and its construction is the basis and guarantee for the effective operation of patent law in society.
1. Ensuring the public's proper access to patented technology is the key to balancing the interests of patent law.
The patent law gives the patentee the monopoly right of invention and creation from the perspective of the patentee's interests, and at the same time establishes the necessary way for the public to obtain patented technology from the perspective of public interest, and makes corresponding rights arrangements. From the relationship between the purpose of patent law and the balance of interests, we can also see that the mechanism of "monopoly for publicity" in patent law embodies the concept of balance of interests in patent law. Such a mechanism of "monopoly for publicity" is actually a system design in patent laws of various countries to ensure the public to obtain patented technology. Public access to patented technology, including competitors of the patentee, is a very important aspect of patent law. Patent right is a kind of monopoly right, but according to the purpose of patent law, the granting of monopoly right cannot constitute an obstacle to technological development; On the contrary, it should be conducive to the development and progress of technology. This is inseparable from the patentee's "full disclosure" of patented technology. "Disclosure of inventions is the purpose of patent system" [5] (P209), because only by fully disclosing patents can the public obtain patent information and share the benefits of patented inventions. All the social benefits of patented technology-mainly the continuous inventions of subsequent inventors on the basis of patented inventions and the acquisition of knowledge and information from patented technology by the general public and the promotion of technological learning-can be realized. Because of this, the patent laws of various countries generally stipulate that full disclosure is an important condition for patent applicants to obtain patents. The Patent Law forces the patent applicant to describe the details of the invention and fully disclose the main points of the invention, and stipulates the conditions for full disclosure, so that the public, including the competitors of the patentee, can make improved inventions, learn new knowledge and obtain new technical information on this basis.
The full disclosure mechanism in patent law also embodies the general mechanism of interest balance in intellectual property law, that is, encouraging the creation of intellectual products and balancing knowledge and information with the public. The disclosure of patented technology enables the public to get close to patented inventions. This way of making inventions public should be regarded as one of the essential contents of the patent system, because it enables competitors to learn knowledge and information from the open inventions, "stand on the shoulders of giants" and continue their creative activities, so that they can make better inventions on the basis of the original inventions, and also enable the general public, especially technicians, to obtain knowledge and information through patent information and enhance their learning. As a condition for obtaining a patent, full disclosure can make the technology available to other researchers. Even if these people can't use the patent without the permission of the patentee, they can still be aware of the information contained in it and continue their research around and outside the exclusive rights granted to the patentee. Through new research, new inventions can be produced, which is obviously beneficial to society. In another sense, this is also a social interest.
In addition, from the analysis of the purpose of patent law, we can see that patent law also has the purpose of avoiding repeated research and investment, thus promoting the effective allocation of social resources on the basis of avoiding waste of social resources. The realization of this goal is also based on patent disclosure, because potential inventors will not invest in repeated research because they know the patent, but will invest their intellectual resources and financial resources in new fields and strive to become new inventors and patentees. In fact, the publicity mechanism can also promote the wide use of patented inventions, because after publicity, potential users can understand the patented technology, so as to determine whether to use the patent, and then decide to reach a license or transfer contract with the patentee. The emergence of this situation caused by the open mechanism is very beneficial to patentees, users and society, because patentees can realize their own economic interests through licensing or transfer, users can also get economic benefits, and society will also benefit from providing more and better patented products and the dissemination of technology and information. It is precisely because of the important position and function of patent disclosure in the patent law that the patent law not only stipulates the disclosure of patent specification and claims, but also stipulates that the technical points of the invention are clearly and completely explained in the patent specification; After obtaining the patent, if the patented technology is not fully disclosed, the patent can be declared invalid through certain channels, and the requirements of full disclosure can be truly implemented to prevent the public's interests from being affected by the insufficient disclosure of the patented technology.
Of course, ensuring the public's proper access to patented technology in the patent law is not limited to full disclosure. Unprotected ideas and principles in a broad sense are also an important embodiment of patent law. There is an important dichotomy principle of thought and expression in copyright law [6], but there is no such principle in patent law. In patent law, the rights granted do apply to creativity. However, it only applies to those creative, new and practical ideas. Principles, theories and discoveries in a broad sense are not within the scope of patent protection. On the one hand, the Patent Law excludes the possibility that scientific discoveries, abstract principles and ideas are the objects of patent protection; on the other hand, it explicitly requires inventors to define the scope of invention accurately, leaving room for further improvement and innovation for continued inventors. Limited by space, the relationship between "ideas" and intellectual property protection such as patent rights is not discussed here. [7]
In addition, from the perspective of the sustainability of innovation, patent law is of great significance in balancing "today's innovation and tomorrow's innovation" in ensuring that "the public properly obtains patented technology". The essence of patent law is not to provide a legal mechanism for the patentee to monopolize technology; On the contrary, patent law needs to promote the appropriate flow of innovation. To become an effective system, patent law must make the flow of innovation reach the best level with the passage of time-patent law must balance today's innovation and tomorrow's innovation. This goal is achieved by reducing rent-seeking. Patent law should not only avoid wasteful and competitive research and development, but also should not occupy future research and development that meets social needs. "The patent law does contain many rules to balance today's inventions with tomorrow's innovations and to limit the erosion of future research and development" [8]. The most striking feature is the open mechanism discussed above, which is an important way for the patent system to promote future innovation. In addition, some systems in the patent law itself, such as novelty and creative conditions, limit the scope of patent protection to what is really invented, avoiding the risk that the too broad scope of patent protection prohibits future inventions.
Second, the proper and reasonable scope of patent protection has become the basis of the balance of interests in patent law.
The balance of interests in patent law, on the one hand, ensures the public's necessary acquisition and acquisition of patented technology, on the other hand, the patentee determines the appropriate and reasonable scope of protection in the system design of patent law, and makes an appropriate and reasonable explanation and application of the scope of patent protection in the implementation of patent law. Therefore, a moderate and reasonable scope of patent protection is also of great significance in the balance of interests in patent law. Generally speaking, at different stages of the patent system, the strength and scope of patent protection are different, even very different, because of the different effects of technology on economic and social development. Generally speaking, the level of patent protection has a trend from low to high. However, no matter what stage of a country's economic and social development, patent law always needs to ensure the necessary monopoly protection to stimulate invention and creation, and at the same time ensure the public's necessary access to technology and information. As some foreign cases have pointed out, according to the incentive theory of patent law, the proper scope of patent right is "a question of balancing the interests of wider protection"-the task of defining the limited monopoly right granted to inventors involves the interests of inventors in controlling and utilizing their inventions on the one hand, and the difficult balance between the social competitive interests of free flow of ideas, information and business on the other [9]. This balance requires avoiding the extremes of over-protection and under-protection of patents. Excessive protection of new technology patents will cause an imbalance between the original invention and the later inventor's innovation incentive and potential ability.
Judging from the system design of the patent law, this appropriate and reasonable scope of protection involves at least the following issues:
(A) the reasonable definition of the object of patent right
In a certain society, which inventions should be included in the object of patent protection and which should not be included in the object of patent protection need to be determined according to the social and economic development at that time, the overall level of intellectual property protection, the advantages and disadvantages of whether the object is included in patent protection, especially whether it is more suitable to coordinate the interests between inventors and the public when granting patent protection. In principle, the scope of patent protection should be adapted to the economic and technological development at that time.
Examining the history of the patent system, we can draw a conclusion that the object of patent protection has an expanding trend. With the improvement of the level of patent protection, the scope of patent protection needs to be expanded. However, in the expanded patent protection object, there is still the problem of determining the appropriate scope of protection. For example, if the genetic field becomes the object of patent protection, it cannot be understood that all genetic technologies should be included in the object of patent protection. The patent protection of genes is accompanied by strict restrictions on related topics. Cloning human beings, changing the genetic identity of human reproductive system, changing the genetic identity of animals and other methods have to become the theme of gene patents.
(2) Reasonable determination of the content and exercise of patent right.
The patent law gives the patentee a series of exclusive rights. For example, according to the provisions of China's Patent Law, the scope of the patent right for invention or utility model includes: prohibiting any unit or individual from manufacturing, using, selling, offering to sell or importing its patented products for production and business purposes without permission, or using its patented method to use, sell or offer to sell products directly obtained according to the patented method. However, the exercise of these exclusive rights by the patentee should not restrict the public's normal access to the patented technology and related knowledge and information, nor should it hinder the market circulation of patented products loaded with patented technology. In this way, there are institutional arrangements in the Patent Law that are not regarded as patent infringement, such as "exhaustion of patents" and "patents are dedicated to science and experiments". Especially in the "infringement exception", the protection of the interests of the first inventor requires the patent law to make appropriate arrangements for the interests of the "first user" of the patent, so as to safeguard the fair and just value of the law pursued by the patent law and the effective distribution and utilization of social resources. In fact, judging from the provisions of the patent laws of various countries on the issue of prior use, the interest coordination relationship between the patentee and the prior user typically embodies the spirit of balance in the patent law.
Furthermore, the reasonable determination of the content and exercise of patent right embodies the principle of limited monopoly of patent right. The principle of limited monopoly made it convenient for later inventors, who would have invested in R&D costs under the condition of absolute monopoly, but it was not needed after the first limited monopoly was established. This really saves social resources and promotes the effective distribution of resources.
(3) Definition of proper and reasonable protection period of patent right
The patent term is related to the patent policy, that is, it reflects enough incentives for the patentee, enough time to recover the investment, and the guarantee for the public to obtain knowledge and information freely. As a monopoly right, patent right is time-limited, not permanent. This is a very different place from tangible property. The term of patent is strictly limited. As a result, the invention itself has entered the public domain in a relatively short period of time and become the public wealth of society, which can be used by anyone. An appropriate and reasonable patent protection period has two important meanings: first, it ensures that the patentee can get enough time to recover the investment of the invention. An appropriate and reasonable patent protection period means that the patent monopolist will have enough opportunities to take advantage of its commercial advantages and recover its costs, and his competitors can also take advantage of his invention through transferee or license. If the protection period of the patent is too short, the patentee will not be able to recover the investment by commercializing the invention, thus providing an economic basis for its subsequent inventions. The second is to create a "public domain" space for the subsequent inventions of competitors and other social public, and as a way to obtain knowledge and information. The patent law establishes the "public domain" by determining the limited protection period. From the purpose of patent, the public domain is a domain that the public can obtain freely and unrestricted. It is an important guarantee of patent law to ensure that technological inventions will eventually return to society and eventually become common wealth that anyone can use. After the patent right expires, the invention becomes a part of the public domain. Giving limited patent protection is considered from an economic point of view, not from a moral point of view. The incentive function of patent seems to indicate that permanent protection period should be given. However, if there is no time limit, all business-related technical information will be subject to patent rights indefinitely, thus forming an infinite monopoly on technology and making the patent system a shackle of technological development.
Determining the limited and appropriate protection period of a patent is also a form of anti-monopoly restriction. Of course, the appropriate and ideal patent protection period is discussed from the perspective of economics. For example, William Nordhaus has fully discussed the incentive theory of patent law [10](P267), in which he also paid special attention to the duration of patent right. He pointed out that every improvement in patent duration or efficiency will stimulate the growth of invention activities. The resulting social welfare includes the reduction of consumer surplus and the present value of producer surplus due to the distribution of more intellectual products. Ideally, the term or efficiency of patent right increases to the point where marginal utility equals marginal cost [11] (p14-15). However, a longer term means a longer information monopoly order, so there will be more inefficient losses related to monopoly [10](P267). Here is the balance between the inefficiency of seeking monopoly and the greater social output produced by the capital investment stimulated by patents [12]. The analysis of the ideal patent term involves the relationship between the patent term or the increased invention under greater patent protection and the increased social cost related to greater patent protection. In other words, from the perspective of economics promoting social efficiency and fairness, there is an ideal "point" in the patent protection period. Extending at this point, that is, giving a longer protection period, will enhance the total amount of incentives for inventions and creations by strengthening patent rights, which is a social interest. But at the same time, increasing the duration of patent protection also has social costs, because increasing the duration of patent protection makes the restriction on technology last longer. If the patent monopoly right granted is too long, the damage caused by the implementation of monopoly right to the public's free access to knowledge and information will exceed the social benefits brought by the implementation of monopoly right. This protection period will not be conducive to the realization of the purpose of patent law to promote social progress. Too short a time limit means that it is difficult for the patentee to achieve ideal economic results. The ideal patent period is to determine such a point, that is, the social benefits and costs are "marginally balanced". How to determine the ideal balance point has become one of the important contents of patent economic analysis. Of course, this is not the focus of this article. It is only proposed here that there does exist an ideal balance point in the patent clause. Throughout the history of the patent system, we can see that the patent protection period has a tendency to extend. This paper holds that from the perspective of balancing the interests of the patentee and the public, we should focus on evaluating whether the social benefits obtained by extending the patent protection period exceed the social costs in a certain period. If it is exceeded, the protection period should be extended, otherwise it should not be extended.
Due to various uncertainties, it is quite difficult to determine the ideal term of patent right even economically. For example, the implementation of the patent, the cost of the patent itself, the social benefits of the patent and other factors are variable. In order to facilitate the operation, in principle, patents with different degrees of creativity are given the same protection period. However, in order to realize the balance of interests and substantive fairness between different inventors and between inventors and the public, the patent law tries to adjust through other supporting mechanisms. For example, it is stipulated that small inventions can only get a relatively short monopoly protection period, and large patented inventions can get a relatively long protection period, which is equivalent to the existing economic value in modern industrial society. In addition, although the patent annual fee system does not directly stipulate that the term of the patent is within a moderately reasonable range, it essentially has the function of balancing and coordinating the relationship between the monopoly interests of the patentee and the public interests, because with the continuation of the patent protection time, the increasing annual fee will also make those inventions with no economic value enter the public domain in advance. If the social value of the patent right is not great, or the social cost of implementing the patent right is greater than the social interest, then the patentee can give up the patent right by not paying the annual fee. That is to say, by adjusting the monopoly time of patent to terminate before the social cost exceeds the social benefit, the social cost and social benefit can be reduced and balanced. In this sense, the patentee and the public have also realized a kind of "consideration".
Third, the balance between patent technology monopoly and popularization and application.
In the eyes of economists, patent law is regarded as a consideration between the innovation of invented products and the loss caused by the temporary monopoly of patent granting, as well as a consideration between the encouragement brought by the restriction of technology use and the social cost. An important problem to be solved in the economic analysis of patent law is whether the incentive from the production of new technology is better than the cost limitation of existing technology. The purpose of this paper is to solve the balance between patent technology monopoly and promoting invention and creation.
As a technological achievement, inventions also have the characteristics of public goods. From the economic point of view, invention patent is an incentive mechanism for invention based on the distribution efficiency in the market mechanism and around some special problems existing in public goods. In the theory of public goods, the marginal cost of using existing public goods is zero. Only when the price is equal to the marginal cost, the ideal use efficiency of existing public goods will appear. However, this will be a "zero price". Therefore, the efficiency in the ideal use of resources requires that the opportunity cost of such resources be compensated by the value of the products created, that is, there is a certain price. In this case, the economic aspect of the patent system depends on the theory that the occurrence of technical knowledge is generated on the premise of ensuring that the use of technical knowledge is restricted. In other words, there is a transaction (consideration) between the production and use of technical knowledge. Of course, this is not an actual market consideration, but such a "transaction" model in patent law. According to this model, in order to solve the legitimacy problem of patent law, it must be clear whether the encouragement from the production of new technologies really exceeds the social cost of restricting existing technologies. The benefits that society gains from inventions usually far exceed the cost of the inventors' implementation. The difference between the cost paid by the society and the actual cost developed by the inventor-rent-is awarded to the inventor in the form of monopoly right; Otherwise, the competition of imitators will make inventors lose profits, thus affecting their enthusiasm for invention. This situation is that the inventor's investment in the invention should have a return on investment. This reflects the balance between the investment and income of the obligee. In the patent law, the patentee should be given an advantage in the following benefit comparison: it should have an advantage in the comparison of the use income of the innovative achievements developed by itself and those purchased by others; It has an advantage in comparing the benefits of buying other people's innovations with the benefits of using existing technologies that have entered the public domain; Compared with the cost of innovation and the cost of safeguarding rights, the market income of innovation results has advantages [13]. These advantages reflect the fairness of the patent system.
Encouraging innovation and developing new products and methods is undoubtedly the most important benefit expected by the patent system. This interest society has a price to pay: a temporary monopoly of patent granting. The patentee restricts the use of the patented invention with the patent right, which restricts the public's access to the patented technology and the use of the patented technology by competitors. Compared with anyone who can freely use open technology, the monopoly of patented technology will obviously lead to the failure of static market and social cost problems. For example, potential users and competitors of inventions may have additional costs when trying to surround patented inventions; Products monopolized by patents, if not fully utilized, will also make consumers pay the price. From the purpose of patent law, this restriction should not hinder the popularization and application of patented technology. Patent law needs to balance monopoly and promote invention and creation. This needs to be solved by establishing some systems to restrict monopoly rights in the patent law, while others need to be solved by using the provisions of competition law outside the patent law, such as anti-monopoly law. Not only does the anti-monopoly law limit the competition in the patent field, but the patent law itself also limits the possibility of obtaining monopoly profits from patents. Exceptions to patent infringement, compulsory licensing of patents, licensing and transfer of patents are important forms of expression. Judging from the provisions of China's patent law, it is an important legislative purpose to promote the popularization and application of inventions and creations on the basis of monopoly protection of patented technologies. Broadly speaking, the above-mentioned restriction of patent protection period is also a system to promote the popularization and application of inventions, because the limited protection period means that the patented technology can be freely used by anyone after the protection period expires, and the original patented technology will eventually become the wealth of society.
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Professor Feng Xiaoqing of China University of Political Science and Law