On October 17th, the 22nd meeting of the 13th the NPC Standing Committee adopted the Decision of the NPC Standing Committee on Amending the Patent Law of People’s Republic of China (PRC). Among them, the revision of Chapter VI of the Patent Law to "Special License for Patent Exploitation" not only conforms to international rules, but also preserves the original compulsory license system. According to the needs of China’s market players and innovation players, and referring to foreign legislation, the relevant provisions of open license are added, which enriches the types and methods of patent exploitation license.
Open license means that the patentee makes a statement through the announcement of the patent licensing department, indicating that anyone who wishes to exploit his patent can obtain the license to exploit the patent by paying the prescribed license fee. Open license belongs to the category of voluntary license, but the government can provide related services by participating in it.
The newly revised patent law contains three provisions on patent opening license. Article 50 stipulates the declaration and withdrawal of the open license. 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 an open license. Article 51 stipulates the acquisition of patent exploitation license, annual fee reduction and exemption and license use fee. During the implementation of the open license, the annual patent fee paid by the patentee shall be reduced accordingly. Article 52 provides for the settlement of disputes over open licensing. 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.
From the content of specific clauses, on the one hand, this revision conforms to the actual needs of patent implementation, on the other hand, it also goes hand in hand with relevant policies and regulations on intellectual property rights and measures for the use of intellectual property rights, which promotes the high-quality development of patent application. For the specific implementation of this clause at the level of patent application, the author believes that the following points should be paid attention to:
First, it should be matched with the detailed operation in the implementation rules of the patent law. The patent law has clearly established the institutional framework of patent open license, and the system docking, process design and written form at the specific operational level need further study and determination, so that the patentee can conveniently apply this new system. In addition to the annual fee reduction, it can also be linked with other incentive policies to improve the enthusiasm of patentees to implement open licensing.
Second, it should be matched with the construction of intellectual property operation platform and intellectual property trading center. Relevant information of patent open license can be uploaded to various operating platforms and trading centers, so that patentees can obtain patent information more conveniently, thus building a more effective docking platform for patent information supply and demand, disclosing patent license demand information in time, quickly realizing the market-oriented trading function of patent open license, and promoting the implementation of patent open license system.
Third, it should be matched with the construction of intellectual property credit system. In June 2014, the Outline of Social Credit System Construction Planning (2014-2020) issued by the State Council took "Credit System Construction in Intellectual Property" as one of the main contents of comprehensively promoting social credit construction. In January 2016, China National Intellectual Property Administration issued the Notice on Several Issues Concerning the Construction of Social Credit System of Intellectual Property System to start the system construction; In November 2018, more than 30 departments and units jointly signed the Memorandum of Cooperation on Joint Punishment of Serious Untrustworthy Subjects in the Intellectual Property (Patent) Field; In August, 2020, 12 local intellectual property offices launched a pilot project of classified supervision. Fraud and other dishonest acts of the patentee involved in the implementation of open license should be included in the work of credit system construction and classified supervision.
The author believes that after the implementation of the newly revised Patent Law on June 1st, 2021, the patent open licensing system will play an important role in improving the quality of patent implementation and the efficiency of patent application, reducing transaction costs through open use, promoting value realization through patent licensing, accelerating the formation of a strong patent market, and further releasing the vitality of innovation and creation. (Author Qi Wang is an associate researcher at China National Intellectual Property Administration Intellectual Property Development Research Center)