The Patent Open License system refers to the voluntary act of a patent holder submitting an open license declaration to the national patent administration department after obtaining the patent right. This declaration specifies the licensing fee and is subsequently announced by the national patent administration department. During the patent open license period, any individual or entity can implement the patented technology results, provided they adhere to the conditions outlined in the open license.
1. Legal Framework
China’s Patent Open License System is codified in Article 50 to Article 52 of the latest version of the Patent Law. These provisions outline the procedures for patent open licensing:
Article 50: If a patentee voluntarily declares in writing to the patent administration department that they are willing to license any unit or individual to implement their patent, specifying the licensing fee, the patent administration department shall announce and implement open licensing. Withdrawal of the open license declaration must also be submitted in writing and announced.
Article 51: Entities or individuals intending to implement an open license patent must notify the patentee in writing, pay the specified licensing fee, and obtain a patent implementation license. During the open license period, the annual patent fee paid by the patentee may be reduced or exempted.
Article 52: Disputes arising from open license implementation can be resolved through negotiation, mediation by the patent administration department, or legal action in the people’s court.
2. Legal Implications and Comparisons
Offer and Acceptance Analogy: The patent open license statement can be considered as an offer, similar to the principles outlined in Civil Code of the People’s Republic of China. Once registered and announced, any unit or individual implementing the patent and notifying the patentee in writing may be seen as constituting an acceptance.
Distinction from Ordinary License: While falling under the umbrella of general licensing, patent open licenses are distinct from ordinary licenses. The patentee relinquishes the right to choose licensees and alter license conditions after the open license declaration is registered and announced.
3. Characteristics and Advantages of the Patent Open Licensing System
Integration of Patent Licensing Information: The system facilitates the disclosure of licensing information by the China National Intellectual Property Administration, fostering communication between licensors and licensees.
Efficiency in Licensing Negotiations: Simplifying the licensing process, the system enables both parties to reach an agreement efficiently, reducing negotiation complexities and associated costs.
Risk Reduction in Patent Transactions: By establishing mechanisms for disclosing licensing information and mediating disputes, the system provides comprehensive information, reducing transaction risks for licensees.
4.Patent Types Covered by the Open License System
The patent open license system encompasses three types of patents: invention patents, utility models, and design patents. After obtaining the patent right, the holder can voluntarily submit an open license declaration, specifying the licensing fee, for any of these patent types. The announcement by the national patent administration department allows anyone to implement the patented technology during the open license period, subject to the specified conditions. Additionally, a patent right evaluation report is required for utility model or design patents when filing an open license declaration.
5. Conclusion
In essence, the Patent Open License System is a voluntary mechanism that reflects the patentee’s willingness to share their technology openly. It not only simplifies licensing negotiations but also enhances transparency, reduces transaction costs, and provides a structured framework for patent transactions across various patent types. The system stands as a progressive initiative in China’s commitment to fostering a culture of open innovation and collaboration.