The first Chinese patent law right to use

Study: Dan (Shanghai Jiaotong University School of Law) Site Date :2007-4-18 18:15:04

Summary
The birth of any legal trade-offs are the result of no exception in the field of intellectual property, intellectual property protection in China, there are many conflicts of interest, the "Patent Law" This is also clearly reflected. In our first application system, our first order on the patent applicant and the interests of people with the right coordination of design first with the right system, it is because of this first start with the right to protect the interests of persons with rights but also on the first with the right to strict limitations. However, there is not reasonable, and our right to use the system before there are still some unreasonable, such as the right of first use of the scope and implementation of behavioral restrictions are not conducive to the protection of human rights does not conform to society the public interest, this paper aims to do some discussion on these issues.

1, first right to the cause of our system design

The birth of a law of any trade-offs are the result of various conflicts of interest when selecting a balance so as to construct a circle centered on the law, from well-known areas of the U.S. Constitution to the intellectual property law Nothing so .
The protection of intellectual property there are many conflicts of interest, rights holders and the public conflict of interest between the developed and developing countries, conflicts of interest, rights for all countries and all mankind with a conflict of interest between the various rights conflict of interest between the so conflicting interests in seeking the best balance between the coordinate point to a conflict of interest, is the intellectual property legislation, a key issue. This is in our country "patent law" The prominent performance in China, "Patent Law" clearly provides that the Act's purpose is to protect the invention patents, to encourage invention, and is conducive to the promotion of inventions ?1? protection of inventions here the rights created by patent is in everyone's interest, and encouraging invention and is conducive to the promotion of invention is represented by the public interest. China's "Patent Law" clearly provides the first point, also said that the coordination of such interest through them from start to finish.
Patent is an intangible property rights, many cases of such intangible property rights will bring significant tangible wealth, while the progress of a society also depends largely on the promotion of invention patents. Exclusive property right or a patent, the patentee is entitled to their own implementation of its patents, but he can prevent others from the implementation of the patent. This patented feature, a patent can only be decided to belong to a patent subject, the "Patent Law" is to patent their inventions and creations of people enjoy the exclusive right to patent the basic starting point, so an invention should only be granted a patent. In other words, an invention is granted if two or more patent, on the contrary to the principles of patent exclusivity. So when the same content inventions by a number of units or individual patent application, it can only be in one entity or individual granted patents, patent granted to who really is a question of principle must be a choice. Looking at the world of patent law, there are two ways to solve this problem, namely, to apply the principles and first principles of the invention.
In view of China's national conditions and social benefits, China's patent law has taken to apply the principle of the so-called first principle is to apply two or more applicants for the same invention patent applications, no matter who completed the first invention, patents granted the first patent application for the applicant. Correspondingly, in the United States there another principle that the first principles of the invention. The so-called first principles of the invention is that two or more applicants apply for a patent for the same invention, whether the first to propose a patent application, patent granted to the first invention of the applicant to complete. When at first glance appears to be deserved the right to award the actual inventor, so it is the first invention of the principle of fairness and justice, but it is the first principle of making the invention patent right holders tend to block in their own hands, bringing the community economic stability of the low, bringing the decline of social efficiency, has brought a significant increase in program costs, enabling the country to have to take into account the interests of the public to coordinate. However, using the principles also apply for the emergence of a phenomenon that is not necessarily the person who obtained the first patent to the people of the invention, there may be other people in the patent application before the applicant made a similar independent inventions, and has manufacturing, use, or do the manufacturing, use of the preparation. In this case, if allowed to patent the patentee authorized the employer to continue to prohibit the first use of the invention, is obviously unfair, but also with the patent system to encourage invention and creation, to promote technological progress and innovation in China's religions. To avoid this injustice, "Chinese Patent Law," provides the first right to use the system, on the patentee to implement some of the restrictions would prevent patent abuse of their rights. This shows that China is not an absolute principle of using the first application, first with the right system is to balance the conflicts of interest designed a system.

2, first with the right design of the system in China

(A) first used the concept of the right
First right is to use an invention patent application before the applicant, any person who has made the identical product, using the same method or is well manufactured, or made necessary preparations, in the invention patented, there are still continue within the original manufacturer or the right to use the invention. ?2? even if the patent were subsequently obtained patents with the first unit or individual with the right to not be regarded as infringing the patent. In practice the same invention by two different people independently completed the invention is common, but not necessarily for all applications for invention patents can only be implemented, or has the date of application are different, but the franchise can only who granted the first application. First with the right protection is not applied, but independent from the completion of another inventor who invented the minimum interests, to its a special right, which has the first right to use the unit or individual may, without the permission of the patentee, continue to manufacture the product or use of this method.

(B) of the first with the right conditions
First used to obtain the right to strict conditions, because the first use of the right to use in fact a patent owner rights. Development of the system must be strictly limited conditions, the behavior of their manufacture or use does not meet any of these conditions are not right with the first use, but may constitute infringement. These conditions are:

(1) the conditions of the time - the act made or used in other patent applications made before the date of ?3?. Approval from the filing date in the period until the occurrence of such acts do not enjoy the first right.

(2) independence of the conditions - manufacture or use of technology is the first person with the right to complete their own independent ?4?, not plagiarism, theft of the patentee, the first with the right people often do not know another person has applied for a patent. Specifically, the invention, by different people independently, and which patent holders and others without any technical cooperation.

However, if the invention is the other non-patent holders from legally obtained Department, meets the "independence" condition? There are usually two in the first instance, legally obtained abroad or within the country legally to obtain a secret, the assignee may become a "first to use people." Second, within the country legally obtained through the technology market, the assignee can not be the "first user" ?5?. This difference because, in their public within the transfer constituted a public use in the country, then the invention would lose their novelty and can not obtain patents. If the patent has been made, others can request the Patent Reexamination Board to revoke or declare the patent invalid. Patent elimination, "first right to use" no longer necessary. The legal assignee of the invention can be implemented.

(3) the use of preparation conditions - by using the right application for patent in the patentee before the date, at least has already done the necessary preparations to be made or used ?6?. If the application priority date on or before the completion of the invention but only make the manufacture, use of the necessary preparations for their inventions are not entitled to "first use right." Because only the implementation of the invention only has value precisely because of this, the law recognized the right of first use is not the invention itself, its research investment returns on its implementation of the invention but the return on investment. Speaking of "necessary preparations" means the following situations:

technical preparation 7. Technical tasks such as whether the book has been issued, the new product design and manufacturing drawings and other books. the production of ready 8. Such as the need to establish whether the plant has been established specifically, whether the product is ready to produce all the necessary equipment ?including general equipment and special equipment), special tools and molds, etc.
Completed the trial 9 samples. The sample test has been achieved through use of the task book requirements and technical requirements. Not doing the "necessary preparations" for their manufacture and use of behavior does not have the first right to use.

(4) limits the implementation of the conditions - by using the right to manufacture or use of behavior is confined to the scope and scale of the original, that is manufacturing purposes, using the scope, the number of products are not beyond the scope of the original ?10?. This is to prevent abuse of the right of first use, while the right people with the first constraint. In practice, "the scope of the original" It's hard to determine, that China's "Patent Law," too strict, focused on the determination of the number of products. Personally think that this is unscientific and can not achieve the desired effect is that this issue will be mentioned later.
So when these four conditions are fulfilled, the same invention of non-patent holders can only receive "first-use right."

(C) the right people with the right of first

First person the right to use the minimum to protect the interests of first use, is without prejudice to the fundamental interests of the patentee conditions. Therefore, the patent law on the rights of prior use rights were strictly limited. The rights of persons with first right of the main features:

(1) do not have to sign a license contract with the patentee. But when that person for a patent or franchise shall notify the patentee to inform the scope of its own production, this reduction of possible future litigation.

(2) do not pay any fees to the patentee.

(3) if the alleged infringement, you can use to defend the right of first use, in order to avoid the bear tort liability. At the same time also have first right to use the restriction of the right, including: right to purchase a separate "first right to use" because "first to With the power "to exercise no more than" the original scope ", so, if the transfer can only be transferred to their enterprise; and no right to use the" first-use right "to invest in mortgages. 11

Third, China's first with the right system for the Re-Thinking

(A) limits the conditions for the implementation of the Rethinking
Have already mentioned before, Right of Prior Use of the scope must be already doing the necessary preparations for the use of ?? Zhizao within, China has now generally accepted that "the original scope of" means to continue manufacturing the same product or use the same The method, however, without the permission of the patentee can be made by the general output shall not exceed the output of patent applications. The usual explanation is based on careful preparation of the case, can be predicted to reach capacity. ?12? There is a saying is "the original scope of" limited to a quantitative standard, the products are generally not exceed the original application the patentee made equipment to achieve production capacity ?13?. Foreign patent legislation currently before the exercise with the right interpretation of the scope and China are very different. Japanese Patent Law Article 79, first owner "in the implementation and preparations for the implementation of the invention and production purposes within the general implementation of the patent has the right to" 14.
This shows that Japan's patent law will first use the power of "the original scope," explained the use of purpose in the context of the original cause of the use, and for the purpose in the context of the original cause of the use of behavior and no amount of restrictions. German Patent Law Article 12 provides that "any person in the patent applications in the domestic implementation of the invention has already completed its necessary, or the preparation of, patent no effect on the people. The person is entitled to meet the needs of enterprises , enterprise or other enterprises in the implementation of the invention "?15?. Can be seen, the German patent law on the scope of the first exercise of the right to use basically the enterprise's "business purpose" as the core, as long as "to meet the needs of the enterprise," the right one can in this business, but also in other enterprises of the invention.
As mentioned earlier, China's first design of the system with the right starting point is the legal principle of equity is the result of balancing the interests of the legislators earlier patentee with the right to choose between people and the balance that had first used rights legal system. According to first apply the principle of patent applications can only be granted to the first person, but once people get the first patent application, it shall enjoy the exclusive right that is so, the original implementation, the use of the inventions have had to suspend the implementation of the invention or a fresh start, which prior use is not fair to those who, because of normal production activities will be forced to stop, put the manpower and material resources will inevitably cause a great waste. While on the other hand, in order to prevent such acts result in the implementation of the lawful rights and interests of patent infringement, the law also requires, first right to be in the "original scope" in the exercise. Since the interests of balance as the Jieguoname right to exercise the right of first use of the range should be calm and He Li Bing Chenggong, Chins, first with the right range to an overly narrow interpretation, for the first right to use as unfair and contrary to the the market economy rules. Because many products are from trial to production, small batch production to large-scale production process, and similarly, many enterprises have gradually expand the business development process. If we start with the right people, "the original scope" for a strict quantitative restrictions, then it will inevitably cause the right of first use of the existing industries in the implementation of an invention can not be increased in number, the ability can not be increased in size can not expand, the first production and management with the right people can only stand still. This is the first right to the protection of people with very negative, this result is precisely the right to use the system before it lost its meaning.
I personally think that "the original scope", we can not one-sided that it is the production of scale and quantity, and the first from the independence of the conditions should be understood that first of all, "the original scope" refers to their original scope, is independent of the completion of individual inventions, rather than all the other associated people, first in right of the right should be strictly limited to the subject invention independently. Second, we should learn from foreign countries generally explained, "the original scope" is the cause of purposes, such as a brewery completed an independent technical innovation, it can allow the production of beer in the field of development of production and use of new technologies to expand production , not because it was originally only had to produce one million cases of ready to always be restricted to the production of 10,000 cases. But at the same course can not be allowed to produce white wine or red wine.
Again, "the original scope" should be interpreted as the original implementation of the method were implemented to reflect the use of the invention before applying for mastery. Every invention in specific applications, ranging from the implementation of both the number of cases. First with the original owner can only be mastered by means of one or more applications to the industrial areas of implementation, but can not apply in the future, in accordance with the patentee's exclusive rights to other ways to implement the invention. Right of Prior Use on such as some people can independently control the welding of its way to make a transmission, but can not take his riveting and so other non-independent way to master the technology to produce the device.

(B) the implementation of the first act with the right to re-think
Patents are applied in a manner the use, manufacture, sale, offering for sale and import of five, while China's first implementation of the right way with the use and manufacture only two. That is in accordance with the provisions of the Patent Law of China, sales of proprietary products can not be used to obtain the first right, which I personally have doubts.
But can we really understand, to some extent with the first objective is to protect the right of people to apply before the first use of industrial investment, and the van used to pay artificially kept selling products, and transportation of all charges, he also conducted investment, such investments also should be protected by law. I think our sales are not required to obtain the right to be first with that, sales will result in the loss of patent applicants in the patent novelty, so the applicant can not obtain patents, patent rights have been nothing without the right to use the first. However, patent applications, a preliminary review only and not for substantive examination of utility models and designs, so the first act to use the sales person does not necessarily lead to subsequent patent application can not be authorized. In China, the present patent application there is a big part in all applications for utility model, so we can not ignore this part of the protection.
Second, the import behavior can also be used to obtain first right of protection? As with the above reasoning, their import does not necessarily result in the loss of the right to apply after the relevant novelty has been dismissed, Importers pay a substantial imports of industrial investments should also be given to the certain protection.

References:
1 Tang Zongshun: "interpretation of patent law", Intellectual Property Press, 2002 edition.

2 Yin Xintian: "patent protection", Intellectual Property Press, 1998.

3 Cheng Yongshun: "What should have first right to use conditions", "electronic intellectual property" 1996 11, p. 1.

4 Cheng Yongshun: "on the first of several problems with the right" and "China Patents and Trademarks" No. 2, 1993, p. 27.

5 Sui Wen Hong: "On the" first right to use "", "Beijing Agricultural College," 11 No. 1, p. 3.

6 Zheng Chengsi editor: "Intellectual Property Law Course," legal Press, 1997, p. 212

7 Tang Zongshun: "The People's Republic of China patent law interpretation of" legal Press, 1986 edition, p. 189.

8 "Introduction of foreign patent law," Volume 2, Knowledge Press, 1981 edition, p. 211.

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