The compulsory licensing system of patents is as follows: (1) The agreement stipulates the preconditions that exceptions should meet, that is, (1) must be restricted so that patents do not interfere with the legitimate interests of third parties; (2) Such restrictions shall not conflict with the normal use of the patent (including not harming the interests of the patent licensee); (3) This restriction cannot unreasonably harm the interests of the patentee. (II) Reasons specified in the Trips Agreement and other reasons The reasons specified in Item 2 of Article 3 1 of the Trips Agreement are as follows: (1) Refuse to trade. That is, "before such use, the intended user has sought the authorization of the obligee on reasonable commercial terms and conditions, but such use is allowed only if the struggle is unsuccessful within a reasonable period of time." This provision is actually related to anti-monopoly. Patent right is a legal monopoly right, but the right holder abuses its monopoly position and refuses the reasonable use requirements of others, which is a refusal to abuse its monopoly position in the nature of transaction. In order to obtain compulsory license based on compulsory transaction, the interested party should prove that it has sought the voluntary authorization of the obligee on reasonable commercial terms and conditions, but it has been rejected or failed to reply within a reasonable time. (2) state of emergency and extreme cases. This means that "in case of domestic emergency, other emergency or non-commercial use, members can waive these conditions." However, in case of domestic emergency or other emergency, the obligee shall be notified in a timely manner within a reasonable time. "The reason for this compulsory license is a state of emergency or similar reasons, such as hunger related to public health and nutrition. (3) Anti-competitive behavior. Compulsory license can be used to remedy anti-competitive behavior, and members do not have to apply the conditions stipulated in items (2) and (6). In this case, the need to correct anti-competitive behavior should be considered when determining compensation. " The United States applies this compulsory license according to its Sherman antitrust law. Compulsory license to remedy anti-competitive behavior is the concrete application of the principle of prohibiting the abuse of intellectual property rights in Article 8, paragraph 2, of Trips Agreement. Such permission must be compensated to the obligee. When determining the amount of compensation, we can consider the need to correct anti-competitive behavior, and allow the reduction of compensation or even free license (such as the United States). (4) Non-commercial use. This happens when a government agency uses a protected patent to accomplish its mission. It should be noted that this kind of use does not have to be directly used by the government, but can also be enjoyed by private individuals. This kind of compulsory license does not require prior request and notice. (5) Dependent patents. Article 3 1 of the Trips Agreement (1 1) stipulates: "If such use is for the purpose of utilizing a patent (the' second patent') and the patent cannot be used without infringing other patents (the' first patent'), the following additional conditions shall apply: (1) With the first patent. (3) The use of the first patent granted shall not be assigned unless it is assigned together with the second patent. " This is a compulsory license granted on the basis of patent dependence. In this compulsory license, the second patent must have "important technological progress with great economic significance". This kind of patent is actually an "improved patent". In some countries, improving patents is of great significance to the development of electronic industry. However, improving the compulsory license of the original patent must rely on the comparison of their economic and technological values. The standard of this value comparison depends on the economic and technical conditions of the country that granted the patent, as well as the scale and strength of the patentee involved. Therefore, patents of great economic significance in developing countries are not necessarily the case in developed countries. (6) Other reasons. The compulsory licensing cause stipulated in Article 3 1 of Trips Agreement is an exemplary provision, and members can also stipulate other compulsory licensing causes in their domestic laws. Such as: public interest; Reasons for environmental protection; Not implemented or not fully implemented; The need of domestic export. (III) Restriction conditions of compulsory license (Zheng called it "right restriction") Although the Trips Agreement provides flexible reasons for compulsory license, the conditions for granting compulsory license are very specific, that is, (1) compulsory license (or government use) must be handled on a case-by-case basis, and the experience of granting a compulsory license cannot be used as a routine or general rule. (2) Before applying for or approving compulsory license, we should refer to the provisions on compulsory license of copyright in the annex of Berne Convention. Because the Agreement on Intellectual Property Rights basically borrows the compulsory licensing conditions in Berne Convention into the compulsory patent licensing system, but only adds "national emergency" and "other special emergencies". (3) If the relevant patent involves semiconductor technology, there are more restrictions on issuing compulsory license. (4) All compulsory licenses can only be "non-exclusive" and "non-exclusive". In other words, after the government forces a third party to use the patented content, the patentee still has the right to use it himself or license others to use it through a contract. (5) Compulsory license is generally not transferable, unless it is transferred together with the enterprise or its goodwill. (6) Products manufactured under compulsory license are mainly supplied to the domestic market. (7) Once the conditions leading to compulsory license disappear and will not happen again, it should be stopped (also called "the principle of situation recovery"). (8) Compulsory licensing of "subordinate patents" should be subject to more restrictions and meet the conditions of the last item of Article 3 1 of Trips Agreement. (9) Statutory cross-licensing system. The cross-licensing system helps to prevent the holders of the "first patent" and the "second patent" (especially the latter) from unreasonably preventing each other from implementing the relevant patents. Although this provision is combined with "compulsory license", it is essentially a "statutory license". Generally speaking, the compulsory licensing system can be used by uncertain people in the public, and the "legal licensing system" can only be used by some people (one of the first or second patentees). (10) All "involuntary licenses" need to pay royalties and cannot be used for free. (1 1) If an involuntary license decision is made, the obligee must be provided with the opportunity to request a review, and the amount of royalties paid for the involuntary license occasion should also be provided with the opportunity to review (judicial review and administrative review).
Legal objectivity:
Article 48 of the Patent Law of People's Republic of China (PRC) is under any of the following circumstances, and upon the application of a unit or individual who has the conditions for implementation, the patent administration department of the State Council may grant a compulsory license to exploit the invention patent or utility model patent: (1) The patentee has not exploited or fully exploited his patent for three years from the date of granting the patent right, and for four years from the date of patent application, without justifiable reasons; (2) The patentee's act of exercising the patent right is recognized as a monopolistic act according to law, so as to eliminate or reduce the adverse effects of the act on competition. Article 49 of the Patent Law of People's Republic of China (PRC) * * * When there is an emergency or extraordinary situation in the country, or for the purpose of public interest, the patent administration department in the State Council may grant a compulsory license to exploit the invention patent or utility model patent.