Implement the Temporary Protection System of Invention Patents

-- From the Perspective of the Payment Mechanism of Patent Royalty

Abstract

The existing temporary protection system seems to protect patent applicants through patent royalties. In fact, due to its emphasis on technology dissemination, pursuit of judicial efficiency, and lack of judicial relief for cost recovery during the temporary protection duration, the temporary protection system is ineffective. The abnormal protection mode that holds “double protection is given when a patent is authorized and no protection is given when a patent is not authorized” provides a larger room for a “submarine patent”. Concerning the behavior of “implementing related inventions in the temporary protection duration”, on the one hand, the law seldom endows patent applicants with rights; on the other hand, certain concessions must be made based on the awareness of rights, which leads to “patent royalty” that is hard to dispose of for personnel handling the case. To implement the temporary protection system of invention patents, it is necessary to combine the unique patent examination system in China. “Whether authorized or not, the patent royalty should be paid” is the original principle of “temporary protection” in China. As an independent stage, the patent royalties during the temporary protection duration should be premised on the patent license fee/infringement fee. Besides, special standards of calculation and examination as well as implementation plans should be established.