2007-9- 14 16:47 source: legal education network [large, medium and small] [I want to correct mistakes]
Keywords: Patent Law/Monopoly/Balance of Interests/Balance Mechanism
The patentee's monopoly interests and social public interests, the measurement standard, selection and integration of interests, and the institutional arrangement to realize the dynamic balance between patent laws. This is a typical interest balance mechanism. The key of this balance mechanism is the balance between the interests of the patentee and the public interest, and the broader public interest on this basis. In order to achieve this balance mechanism, we need to properly close the patented technology and fully protect public opinions. Therefore, in the design of patent legal system, it is necessary to determine the appropriate and reasonable scope of patent protection, which is the basis for establishing the interest balance mechanism of patent law. At the same time, the interest balance mechanism in patent law must have a good balance and coordination among monopoly enterprises in order to promote the use of patented technology. The patent law properly solves this problem through the unique mechanism of encouraging invention and creation and the mechanism of restricting rights.
In patent law, legal adjustment can be divided into two categories: stakeholders other than the monopoly interests of the patentee and the interests of the patentee. The latter is the so-called public interest. Copyright, trademark rights and other intellectual property laws, the interest balance mechanism of patent law, patent law and patent system is the core of coordinating and balancing the rights and interests of intellectual products, that is, "the legal system adopted by the invention realizes and maintains the normal economic order by balancing and coordinating the rights and obligations among designated inventors, arouses people's enthusiasm for invention and creation activities, and promotes the rapid development of social economy and technology" [1] The key of this interest balance mechanism is the personal interests of the patentee. Patent law is to measure the interests among the interests, the monopoly interests of the patentee and the public interests, and to select and integrate these interests in order to realize a dynamic and balanced institutional arrangement. In essence, the patent law and other legal systems should be consistent with "protecting and safeguarding the interests of the whole society as much as possible, and maintaining a certain balance or coordination between protection and all interests" [2]( P 14 1). The key to an accurate and successful patent system is to balance the rights of the exclusive patentee and the public interest, and to balance the interests between the inventor of the patent system and the general public in the open competition market [3]. The key to this balance is the balance between individual rights of patent protection and public demand, including competitors' patentees, knowledge and information based on patents and interests. China's patent cases point out that the legislative purpose of patent law is to "clarify the technical scheme of patent protection, but also clarify that the public can freely use the reasonable technical field of invention patent protection and the public can provide sufficient legal certainty" [4].
Focusing on the balance between the patentee's monopoly interests and social public interests in different countries and different periods, as well as the whole patent law, is it the balance between all restrictions of the patentee's monopoly interests and social public interests? However, this balance is still the core and most important. Through a series of institutional mechanisms, monopoly and anti-monopoly restrictions, restrictions and anti-restriction measures, the patent law generally maintains the balance between the monopoly interests of the patentee and the public interests. From the dynamic balance of operation, its construction is the basis and guarantee for the effective operation of patent law in society.
The key to protect public access is the balance of interests in patent law.
Starting from the interests of the patentee, the monopoly of patented invention technology and the public interest, the patent law also establishes the right arrangement that open patented technology needs to be closed. From the balanced relationship between the purpose and interests of patent law, we can see that the "open" mechanism of patent law in exchange for the monopoly of interest management's experience in patent law embodies this balance. This kind of monopoly, in exchange for the disclosure of "mechanism design system", is actually a country's patent law to protect the public's access to patented technology. Close to the competitors of public patentees, patent law including patented technology is a very important aspect. Patent is a monopoly, but according to the purpose of patent law, the monopoly status granted cannot constitute an obstacle to technological development. On the contrary, it should be conducive to the development and progress of technology. This is an inseparable patented technology of the patentee and can be completely opened. "The purpose of invention disclosure is the patent system" [5](P209) Only the patented invention, patented information and the benefits enjoyed by the public can be fully disclosed. All social welfare-the patented technology of subsequent inventors-mainly comes from patented technology, the invention of patented inventions and the acquisition of knowledge and information by the general public, as well as strengthening technical learning-can be realized on a continuous basis. Therefore, the sufficiency of publicity is an important condition in the general principles of the national patent law, and the patent has been obtained through the compulsory patent application of the patent applicant. The invention, key points and fully disclosed details of the patent law provide completely open conditions for the competitors of the patentee, including the public, to learn new knowledge and new technical information on the basis of improving the invention.
Patent law, in the general mechanism of full disclosure mechanism to balance the interests of intellectual property law, encourages the creation of intellectual products, and also reflects the balance and disclosure of public knowledge and information, so that citizens can close the patented technology of patented inventions. And closure should be regarded as one of the important contents of this open invention patent system, which invented the knowledge and information of the public, because these two competitors were constantly created to "stand on the shoulders of giants". Activities, so that they can make better original inventions, but also let the general public, especially technicians, obtain knowledge and information through patent information and improve their learning. Completely open patents as a condition for allowing other researchers to acquire technology. Even if these people can't use the license of the patent holder, they can still realize the information contained, and continue to concentrate and expand the exclusive agency in the research field to grant patents and produce new inventions through new research, which is obviously beneficial to society. In another sense, this is a kind of social welfare.
In addition, from the analysis of the purpose of patent law, patent law is to avoid repeated research and investment, promote the effective allocation of social resources, and avoid wasting the resource base of society. On the basis of the patent disclosure of potential inventors who achieve this goal, we know that the built-in patent investment is being studied repeatedly, but its intellectual resources and financial resources have entered a new field, and strive to become inventors and patentees. In fact, publicity is a widely used mechanism to promote effective patented inventions to the public. Potential users can decide whether to use related patents by knowing the patented technology, and then decide to reach a license or transfer contract with the patent holder. The open mechanism has led to this situation. Patents, users and society are very beneficial, because patentees can realize their own economic interests through licensing or transfer, and users can also obtain the economic benefits of patents to benefit the society and provide more and better products, technologies and information. This is due to the important position and function of patent disclosure. The Patent Law and the Patent Law not only provide patent specifications and patent claims that should be published. The patent specification provided should clearly and completely explain the technical patent of the invention, because the technology being patented is not completely disclosed, the patent can be declared invalid in some way, and due to the influence of social interests, the requirements for real implementation are fully disclosed, and there is not enough disclosure to prevent the patented technology.
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Of course, protecting the public's legitimate access to patented technology in the patent law is not limited to the comprehensive opening of a wide range of ideological principles. The important idea of patent law and the principle of dichotomy of expression are important manifestations of unprotected. Copyright law [6], this principle does not exist in patent law, patent law does not apply to creativity, only to those who are creative, thoughtful and practical. Outside the scope of broad principles, theories and discovery patent protection. On the one hand, patent law does not include abstract principles, and ideology is the subject matter of patent protection. On the other hand, it obviously needs a precisely defined scope. The inventor of the present invention left room for the further development of science and the continuous discovery and innovation. Due to the limitation of space, this book is devoted to the idea of protecting patents and other intellectual property rights.
In addition, continuous innovation is very important for today's and tomorrow's innovation to ensure that the public is properly close to the innovation of "patent technology and patent law balance". Whether the nature of patent law is to monopolize the legal mechanism provided by the patentee; On the contrary, patent law needs enough liquidity to promote innovation. Patent law is an effective system, and its goal is to reduce the rent and seek to realize the process innovation of patent law-patent law must balance today's innovation with future innovation and the passage of time to achieve the best degree. It should not be the only R&D that wastes competitiveness, nor should it occupy future R&D in order to meet social needs. Patent law contains many rules to balance today's inventions with tomorrow's innovations and to limit the erosion of future research and development. [8] As mentioned above, this is an important way for the patent system to promote future innovation. In addition, in some patent legal systems, such as novelty and creativity of conditions, the scope of patent protection is limited. The real invention is to avoid inventions with too wide patent protection and prohibit future risks.
Second, the proper and reasonable scope of patent protection has become the basic patent law.
The interests of patent law are balanced, and the balance of interests is mainly to ensure that the necessary technology for patent disclosure is close to and patented. The patent law is implemented within a reasonable scope, and the scope of patent protection is properly and reasonably interpreted, which is applicable to the design of the patent law system. Therefore, it is of great significance to balance the interests of patent law and the reasonable and moderate scope of patent protection. Generally speaking, at different stages of the patent system, there are differences, even huge differences, in the impact on economic and social development and the intensity and scope of patent protection due to technical differences. Generally speaking, the trend from low to high is the level of patent protection. However, no matter what stage of a country's economic and social development, patent law always needs to be followed on the basis of monopoly, in order to stimulate invention, ensure necessary protection, and ensure that necessary technology and information are open to the public. The case points out that in the patent law of foreign incentive theory, the proper scope of patent is "balancing interests and protecting things more widely"-the definition of granting inventors limited monopoly rights involves aspects ... the interests of inventors, their control and use ... On the other hand, this invention is a difficult balance between social ideas, information and the free flow of business [9]. This requirement of avoiding over-protection and protecting patents is less than two extremes. Excessive protection of new technology patents will lead to the imbalance between the innovation of incentive mechanism and the potential of the original invention and subsequent inventors.
Judging from the patent law of system design, this is an appropriate and reasonable scope of protection, which at least involves the following issues:
(A) the definition of patent rationality objection
In a certain society, what should be included in the object of patent protection should not be included in the object of invention protected by patent. According to the overall level of social and economic development and intellectual property protection at that time, patent protection and the advantages of patent protection were not included in the included objects, especially considering the coordination between inventors and patent protection and public interests not given in patent protection, which one is more suitable to determine. In principle, the scope of patent protection should be compatible with economic and technological development. "
Examining the history of patent system, we can draw a conclusion that the object of patent protection tends to expand. With the improvement of patent protection level, patents need to expand the scope of protection objects. There are still problems in expanding the object of patent protection and determining the appropriate scope of protection. For example, when the gene field is the object of patent protection, it cannot be understood that gene technology should be included in the patent of the protected object. The patent protection of this gene is accompanied by strict restrictions on related issues. Cloning and other methods have changed the genetic identification method of human reproductive system to change the genetic identity of animals, which has to become the theme of gene patent.
(two) the content of the patent right and the reasonable guarantee of its exercise.
According to the provisions of China's Patent Law, the Patent Law gives the patentee a series of exclusive rights for invention or utility model patents, including prohibiting any unit or individual from authorizing the manufacture, use, sale, promise to sell or import its patented products, or using its patented methods, as well as products directly obtained from patents used, sold or promised for production and business purposes. However, the exercise of these exclusive rights and patent rights should not constitute restrictions on patented technology, knowledge and information that are usually closed by the public, and should not prevent the market liquidity of patented products loaded with patented technology. In this way, there is an institutional arrangement that the patent infringement law does not serve as an "infringement exception", such as "exhaustion of patents" and "patents used in scientific experiments". In particular, the protection of the interests of the first inventor by the "infringement exception" requires proper arrangement of the interests of the "first use" patent in the patent law, so as to safeguard the fairness and justice of the patent law and investigate the legal value and the effective allocation and utilization of social resources. Judging from the provisions of the national patent law, the prior right, that is, the coordination of interests between the patent right and the prior right holder, typically embodies the spirit of balance in the patent law.
Further patent content and reasonable protection to reflect the principle of limited monopoly of patents. Under the principle of limited monopoly, it is convenient for inventors to have an absolute monopoly position, and inventors will invest in research and development costs, but under limited monopoly, you need. This really saves social resources and promotes the effective allocation of resources.
(3) properly and reasonably define the patent protection period.
The patent protection period and patent-related policies are enough to encourage the patentee to recover the investment, protect the knowledge and information and open it to the public free of charge. The term of patent monopoly is not permanent. Tangible property is a very different place. The term of patent is strictly limited, as a result, the invention itself enters the public domain in a relatively short time and becomes the public wealth of society. An appropriate and reasonable patent protection period that anyone can use has two important meanings: one is to ensure that the patentee of the invention has enough time to get a return. In any case, an appropriate and reasonable patent protection period will give the patent monopolist ample opportunities to take advantage of his enterprise and recover his costs, so that his competitors can use the forms invented or licensed by the assignee. If the patent protection period is too short, the patentee will not be able to recover his investment, then his invention will provide an economic basis and be commercialized through the invention. Subsequent inventions and competitors, as well as other means of public space, acquire knowledge and information and create a "public domain" with limited protection period as determined by the Patent Law. As far as patents are concerned, the public domain is free and unrestricted. The time given for its establishment is limited, and technological inventions protected by patent law in the public domain will eventually return to society and eventually become valuable wealth that anyone can use. After the patent expires, the invention will become a part of the public domain. From the economic point of view, rather than from the moral legitimacy, patent protection is limited. The patent of incentive function seems to indicate that the protection period should be granted permanently. However, there is no time limit, and all business-related technical information will be patented indefinitely, which has formed an infinite technology monopoly and patent system's constraints on technology development.
There are restrictions on determining the corresponding patent protection period, which is also a form of anti-monopoly restrictions. Of course, from the point of view of discussion, William. Nordhaus has fully discussed the economy, such as the incentive theory of patent law [10](P267). In these discussions, his special concern is still the exclusive period. He pointed out that every improvement in the efficiency of patent period will stimulate the growth of invention activities, which will bring social benefits, including smarter product distribution and the reduction of consumer surplus and producer surplus present value. Ideally, the marginal utility of patent period or efficiency improvement is equal to the marginal cost [11] (p14-15), but the longer the information is sorted out, the lower the efficiency of relevant monopoly [10](P267). Here, the balance between inefficiency, monopoly of patents and stimulating capital investment is sought to achieve greater social output [12]. The ideal of analysis involves the increase of patent duration, the relationship between invention patent protection and greater patent protection and the increase of social cost. In other words, from the perspective of economics, from the perspective of promoting social efficiency and from the perspective of fairness, it is an ideal "point" to extend the patent protection period. At this point, given a long protection period, it is a social benefit to enhance the total amount of invention patents by strengthening the agreement, but it also increases the social cost of patent protection period, because it improves the technical limit of patent protection and lasts longer. In the long-term monopoly of patent granting monopoly, the implementation of freedom of knowledge and information and the damage caused by the above-mentioned social welfare monopoly of citizens, the duration of this protection will not be conducive to the realization of the purpose of patent law and promote social progress. Too short a time limit means that it is difficult for the patentee to achieve the ideal economic effect. The ideal patent term is to determine a point, that is, the marginal balance between social benefits and costs. "How to determine the ideal balance point is an important aspect of patent in economic analysis. Of course, this is not the focus of this article. Only by improving here, an ideal balance point is the existing patent term. Examining the history of the patent system, we can see the trend of extending the patent protection period. This paper holds that from the perspective of the balance between patents and social public interests, when extending patents and the extent of extension within a certain period of time, we should focus on evaluating the extension of patent protection period in order to achieve social benefits greater than social costs. If it exceeds the standard, the protection period will be extended; if it exceeds the standard, it will not be extended.
Even the ideal economic confirmation of patent term has become quite difficult, because there are various uncertainties, such as patents in execution, the cost of patents themselves, patents with social benefits and other factors. For the convenience of operation, in principle, creative patents are also given different protection periods. However, in order to realize the balance of interests and substantive fairness between inventions in patent law, the inventor tried some other auxiliary mechanisms to adjust the regulations different from the public. For example, the invention is small in scale and has only a relatively short period of monopoly protection. Patented inventions can be protected for a relatively long period of time in the following ways, and their value has economic significance in modern industrial society. In addition, although the patent annual fee system does not set a time limit for patents within a reasonable range, in essence, it has a balance and coordination between the interests of patent monopoly and public interests, because with the extension of patent protection time, the annual increase in fees will be the role of those inventions with no economic value entering the public domain in advance. If the social value of the patent is not great, or the social cost of implementing the patent is greater than the social interest, the patentee will give up the patent by paying an annual fee. The social cost before the termination of patent monopoly time adjustment exceeds the social benefit, and the social cost can be reduced to balance and social benefit. In this sense, both the patentee and the public are aware of the "cost".
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Balance between monopoly and popularization of patented technology
Economists believe that the patent law gives the invention the cost of innovation and loss, and the social cost of restricting the use of technology. The economic analysis of patent law solves an important problem, that is, whether to encourage production, encourage monopoly with cost, and promote the balance between the popularization and application of patented technology compared with the new technology with cost limitation in the existing technology.
Invention is a technological achievement, but it also has the characteristics of public goods. From an economic point of view, the market mechanism of resource allocation efficiency based on invention patents focuses on some special problems of public products and engages in invention awards. In the theory of public goods, if the marginal cost of existing public goods is zero, it will appear as an ideal choice for existing public goods only when the price is equal to the marginal cost income. However, this will be a "zero price". Therefore, an ideal resource is created, and the product value of this resource compensates the opportunity cost required by efficiency, that is, a certain price. In this case, the economy of patent system depends on the theory that the limit of technical knowledge occurs to ensure the premise of using technical knowledge. In other words, there is a transaction (price) between the production and use of technical knowledge. Of course, this is not the real market price, but the "transaction" mode of patent law. According to this model, in order to solve the validity problem of patent law, it is necessary to explicitly encourage new technologies to produce better technologies than the existing limited social costs. Inventions with social benefits are usually inventors who far exceed the implementation cost. The difference between the inventor of social repayment and the inventor of development-rent-the actual cost of the invention rewarded in the form of monopoly, otherwise the imitator's enthusiasm for the invention will not be affected by profits. This situation is that the invention that the inventor gets from the investment should have a return on investment. This reflects the balance of rights and interests of importers. In the patent law, the patentee is mainly interested in the following aspects: buying other people's innovation achievements, making use of the comparative advantage of income, developing his own innovation achievements and obtaining income, buying and using other people's innovation achievements have entered the existing technical advantage of public comparative income, the comparative advantage of innovation market income and the cost of innovation and rights protection [13]. These advantages have gained the fairness embodied in the patent system.
The patent system that stimulates innovation and develops new products and methods is undoubtedly the most important benefit, which people expect. The benefits of society come at a price: patents granted by temporary monopoly. Patented inventions restricted by the patentee and patented technologies restricted from public access are applicable to competitors' use of their patented technologies. Anyone can freely use the patented technology monopolized by open technology, which will obviously lead to electrostatic market failure and social cost. For example, the potential users and competitors of the invention try to control the patented invention, which may be an extra cost; Products monopolized by patents, if they cannot make full use of the cost to consumers. As far as patent law is concerned, this restriction should not hinder the popularization and application of patented technology. Patent law needs to solve the monopoly problem and promote the balance of popularization and application of inventions and creations. This requires the establishment of patent law with the help of monopoly system that restricts rights, but it also needs the help of external competition law, patent law and anti-monopoly law. Not only the competition between patent and patent law in this field, but also the anti-monopoly law limits the possibility of patent monopoly profits. The implementation of patent infringement exception, patent compulsory license, patent license and transfer system is a very important embodiment. Based on patent law and patent monopoly protection, it is an important legislative purpose of our country to promote the popularization and application of invention and creation. Broadly speaking, it puts forward a system that can promote the popularization and application of invention and creation beyond the limitation of patent protection period, because limited protection period refers to the system after the expiration of patent technology protection period.