How to understand the monopoly and openness of patent right

The monopoly of patent right is manifested in the protection mode and effective scope of patent right. With the help of state power, the patentee realizes personal control and control of technical methods in a specific time and region: it is an exclusive license for implementation and exclusive sales approved by the administrative organ. Therefore, patent right is understood as "privilege" or "monopoly right" from the beginning. Due to the intervention of administrative organs, patent rights are different from real rights in terms of protection. On the surface, the effective examination and approval scope of the administrative organ for the patentee goes beyond the strict scope of personal autonomy established by the ownership of things and extends to the effective scope of public power. In a sense, the patentee has made a right form similar to the "administrative licensing right" owned by the administrative organ. The special protection mode of patent law is the balance mechanism of "consideration" for technical methods. This kind of consideration must be authorized by the administrative organ to supervise the implementation, so there has been a normative form of administrative organ intervention review. According to the traditional property law, technical methods can not be regarded as "property rights". Technical methods exist in people's minds. The natural state of personal control and possession is used in a confidential state: once expressed, it becomes "technical information", which determines that once made public, it loses the ability of personal control. Therefore, technical information does not meet the prerequisite of property law protection: openness against the natural exclusiveness of the third party. Therefore, in the long century, intellectual activities cannot be given private rights. However, technical methods are protected as natural rights because they can be internalized and materialized into products without being cracked. The only effective way for the obligee to control and profit from it is to take confidential measures to make it be used in a confidential state. This is the protection mode of trade secrets. There should be no difference between the right object essence of trade secrets and the objective essence of patents, but the objective attributes and examination standards such as novelty, creativity and value are different. The Trade Secrets Law allows the obligee to take confidentiality measures, such as signing confidentiality agreements, to strengthen its own control and "private right" of confidentiality. The trade secret protection model objectively stimulates secrecy, and only secrecy can make the obligee profit and maintain the competitive advantage. However, the secrecy of technical methods hinders the technological progress and skill upgrading of the whole society. If an intellectual worker is willing to disclose his creative technical information, the state will compensate the obligee for the exclusive right to a certain amount of time and space, so that he can continue to maintain a dominant position in production because of this technology. Because the technical method will become a well-known technology after it is made public, and its dissemination space is the logical scope of technical information, the state has the effective scope of human rights and world rights according to the traditional property rights, and ensures that the rights obtained by the applicant have the effective scope of property ownership. With the help of the state, the patentee has realized the ability to possess and control technical information, and the individual rights have also expanded from the independent and restricted fields to the public domain. Individual rights have developed into individual rights. The possession, use, income and disposal of real right ownership have developed into the right form of "public and private rights" of patent exclusive rights, implementation rights and licensing rights. Compared with the traditional protection mode of civil law, in the patent law, the "legal facts" that make specific rights produce, change and disappear in the traditional civil law are interpreted as "institutional facts" or creation facts directly examined and approved by patent authorities, so that patent rights can be produced, changed and disappeared according to law. In the patent system, the administrative responsibility of the administrative organ to examine, confirm and license the achievements of folk technological inventions is different from the administrative responsibility exercised in administrative law for public interests and national interests in China: figuratively speaking, the patent administrative examination organ only confirms the transaction process of each "consideration" according to the "contract conditions" of the national consideration, and the law does not give it other administrative privileges other than those authorized by the state. Legally speaking, its legitimacy cannot be questioned. Patented products are the materialization of technical methods and the inevitable result of the patentee's exercise of exclusive rights, implementation rights and licensing rights to technical methods. In this way, the monopoly right is the legal right of the patentee in the market. Its legitimacy proves that the patentee's monopoly on the market share of patented products is justified; Any technical inventor's technical method is the result of his intellectual creation, so it has the premise of the legitimacy of natural rights. From an economic point of view, the right certificate obtained by the patentee in the patent office is only a kind of "expected monopoly market access right" or qualification right. Can't be directly used for consumption. If it can't be realized as material property and practical benefits for direct consumption, it won't play a role in stimulating the market. Judging from the concept of rationality of property law, the "cashing" of blank checks on the market share of patented products is completed through the market investment and development labor of the patentee or legal assignee; Moreover, because the "cashing process" of market development is the result of a "game" with great uncertainty and risk, the "bad check" issued by the patent office is likely to be a "bad check". Therefore, the monopoly market share of patent rights has become a huge space for the patentee to "realize" the property value constructed by the patent law, and has stimulated competitors to pursue and expand this space and realize the value goal of expected market share. Therefore, the monopoly of patent right accords with the idea that labor creates value as the support of economic operation. The legitimacy of patent monopoly enables it to exercise its patent right within the scope confirmed by the administrative organ. Even if it can form a monopolistic market advantage, it cannot be adjusted as restricting competition: the competitive goal of patent system design is to stimulate global technological progress. Encouraging scientific and technological innovation means encouraging new technologies to apply for patents and develop new technology products. Because of this, patent right has become an "exception" to unfair competition regulated by market competition law. The disclosure of patent refers to the disclosure of patented technology. Technology disclosure means that the patent applicant must fully disclose the contents of the invention-creation for which he applies for a patent in the form of instructions and other patent application documents. Patent authorities should also inform the public of inventions and creations that have applied for patents. On the one hand, they should let the society know about inventions and creations that have applied for patents and supervise the granting of patent rights. At the same time, it also provides the public with information about inventions and opportunities to use them. It should be said that technology disclosure is the condition for inventors to exchange patents for the society, and it is also the obligation of patentees to the society. If the patent is not made public, how can the public know that there is this exclusive technology, and how can they "rent-seek" the license of the patent and gain benefits? In other words, if patent information is not released to the public, then there is no concept of monopoly right, let alone the profit of patent right. Therefore, the openness of patent is the basic feature of patent, which is determined by the inherent characteristics and laws of patent.