27-9-14 16:47 Source: Legal Education Network, I want to correct mistakes

Keywords: patent law/monopoly/benefit balance/balance mechanism

Abstract: Patent law is to balance, select and integrate the interests between the monopoly interests of the patentee and the interests of the public in order to achieve a dynamic balance. It is a typical interest balance mechanism. The key to this balance mechanism is the balance between the interests of the patentee, the public interests and the broader public interests on this basis. In order to realize this balance mechanism, it is necessary to fully guarantee the public's proper access to patented technology. Therefore, in the system design of patent law, it is necessary to determine the appropriate and reasonable scope of patent protection, which is also the basis of constructing the interest balance mechanism of patent law. At the same time, the interest balance mechanism of patent law must solve the problem of balance and coordination between monopoly and popularization and application of patented technology. Patent law has properly solved this problem through its unique mechanism of encouraging invention and creation and right restriction.

in the patent law, the interests of legal adjustment can be divided into two categories: the monopoly interests of the patentee and the interests of other stakeholders other than the patentee, of which the latter can be generally called the social public interests. Like other intellectual property laws, such as copyright law and trademark law, patent law is also an interest balance mechanism to coordinate and balance the interests of intellectual products. The patent system centered on patent law is "a legal system to balance and coordinate the relations among inventors, owners and inventors by stipulating their rights and obligations, so as to maintain the normal economic order, arouse people's enthusiasm for invention and creation activities, and promote the rapid development of social economy and science and technology" [1 The key of this interest balance mechanism is the balance between the patentee's personal interests and the public interests and the broader public interests on this basis. Patent law is an institutional arrangement for balancing, selecting and integrating the interests between the monopoly interests of the patentee and the public interests in order to achieve a dynamic balance. In essence, the patent law, like other legal systems, should "protect all social interests as much as possible and maintain a certain balance or coordination among these interests, which is consistent with the protection of all interests" [2](P141). The key to any successful patent system is to strike a precise balance between the exclusive right granted to the patentee and the public interest in an open and competitive market, that is, "the patent system needs to strike a balance between the interests of inventors and the interests of the general public" [3]. The essence of this balance lies in the protection of the private right of patent right and the balance of interests between the public, including the competitors of the patentee, and the acquisition and demand of patent-based knowledge and information. China's patent cases point out that the legislative purpose of the patent law is to "not only clarify the protected patent technology scheme, but also clarify the space where the public can freely use technology for invention and creation, and combine the reasonable protection of patents with providing sufficient legal certainty to the public" [4].

The balance between the patentee's monopoly interests and the public's interests is emphasized in different countries and periods, and the whole patent law is not limited to this. However, this balance is still the most core and substantial. Through a series of institutional mechanisms, especially monopoly and anti-monopoly, restriction and anti-restriction, the patent law generally maintains the balance between the monopoly interests of the patentee and the interests of the public. It is a dynamic balance in operation, and its construction is the basis and guarantee for the effective operation of patent law in society.

1. Ensuring the public's proper access to the patented technology is the key to the balance of interests of the patent law

The patent law gives the patentee the monopoly right of invention and creation from the perspective of the patentee's interests, and at the same time establishes the necessary access of the public to the patented technology from the perspective of the public interest, and makes corresponding rights arrangements. From the relationship between the purpose of patent law and the balance of interests, we can also see that the mechanism of "monopoly for publicity" in patent law embodies the idea of balance of interests in patent law. Such a "monopoly for publicity" mechanism is actually a system design in patent laws of various countries to ensure the public's access to patented technology. The public's access to patented technology, including the competitors of the patentee, is a very important aspect of patent law. Patent right is a kind of monopoly right, but according to the purpose of patent law, the granting of monopoly right cannot constitute an obstacle to technological development; On the contrary, it should be conducive to technological development and progress. This is inseparable from the patentee's "full disclosure" of patented technology. "Disclosure of inventions is the purpose of the patent system" [5] (P29), because only by fully disclosing patents can the public obtain patent information and share the benefits of patented inventions. All the social benefits of patented technology-mainly the continuous invention of subsequent inventors on the basis of patented invention and the general public's acquisition of knowledge and information from the patented technology and the promotion of technical learning-can be realized. Because of this, the patent laws of various countries generally stipulate that full disclosure is an important condition for patent applicants to obtain patents. The Patent Law stipulates the conditions of full disclosure by forcing the patent applicant to describe the details of the invention and fully disclose the main points of the invention, so that the public, including the competitors of the patentee, can make improved inventions, learn new knowledge and obtain new technical information on this basis.

the full disclosure mechanism in the patent law also embodies the general mechanism of interest balance in intellectual property law, that is, encouraging the creation of knowledge products and balancing knowledge and information with the public. The disclosure of patented technology enables the public to get close to patented inventions. This kind of public approach to inventions should be regarded as one of the essential contents of the patent system, because it enables competitors to learn knowledge and information from the disclosed inventions, "stand on the shoulders of giants" and continue their creative activities, so that they can make better inventions on the basis of the original inventions, and also enable the general public, especially technicians, to obtain knowledge and information through patent information and enhance their learning. Full disclosure, as a condition of obtaining a patent, can enable other researchers to obtain the technology. Even if these people can't use the patent without the permission of the patentee, they can still realize the information contained and continue to study around and outside the exclusive rights granted to the patentee. Through new research, new inventions can be produced, which is obviously beneficial to society. In another sense, this is also a social interest.

in addition, from the analysis of the purpose of the patent law, it can be seen that the patent law also has the purpose of avoiding repeated research and investment, thus promoting the effective allocation of social resources on the basis of avoiding waste of social resources. The realization of this goal is also based on patent disclosure, because potential inventors will not invest in repeated research by knowing the patent, but will invest their intellectual resources and financial resources in new fields in an effort to become new inventors and patentees. In fact, the disclosure mechanism also has the effect of promoting the wide use of patented inventions, because after the disclosure, potential users can know about the patented technology, so as to determine whether to use the patent, and then decide to reach a license or transfer contract with the patentee. The appearance of this situation caused by the open mechanism is very beneficial to patentees, users and society, because patentees can realize their own economic benefits through licensing or transfer, users can also get economic benefits, and society will benefit from providing more and better patented products and the spread of technology and information. It is precisely because of the important position and role of patent disclosure in patent law that the patent law not only stipulates that the patent specification and patent claims should be disclosed, but also stipulates that the technical points of the invention should be clearly and completely explained in the patent specification; After obtaining the patent, if the patented technology is not fully disclosed, the patent can be declared invalid through certain channels, so as to truly implement the requirements of full disclosure and prevent the interests of the public from being affected by the insufficient disclosure of the patented technology.

of course, ensuring the public's proper access to patented technology in the patent law is not limited to full disclosure. It is also an important embodiment in the patent law that ideas and principles in a broad sense are not protected. There is an important principle of dichotomy of thought and expression in copyright law [6], but there is no such principle in patent law. In patent law, the rights granted do apply to ideas. However, it only applies to those creative, new and practical ideas. Principles, theories and discoveries in a broad sense are outside the scope of patent protection. On the one hand, the patent law excludes the possibility of scientific discoveries, abstract principles and ideas as the objects of patent protection, on the other hand, it also explicitly requires the inventor to define the scope of the invention accurately, so as to leave room for further improvement and innovation for continued inventors. Limited by space, the relationship between "thought" and intellectual property protection such as patent right is not discussed here. [7]

In addition, from the perspective of the sustainability of innovation, it is of great significance for the patent law to balance "today's innovation and tomorrow's innovation" in ensuring "the public's proper access to patented technology". The essence of patent law is not to provide a legal mechanism for the patentee to monopolize technology; On the contrary, patent law needs to promote the proper flow of innovation. To become an effective system, patent law must make the flow of innovation reach the best level with the passage of time-patent law must balance today's innovation and tomorrow's innovation. This goal has been achieved by reducing rent-seeking. Patent law should not only avoid wasteful and competitive research and development, but also should not occupy future research and development that meets the needs of society. "The patent law does contain many rules to balance today's invention and tomorrow's innovation and limit the erosion of future research and development" [8]. The most remarkable feature is the open mechanism discussed above, which is an important way for the patent system to promote future innovation. In addition, some systems in the patent law itself, such as novelty and creativity conditions, limit the scope of patent protection to what is really invented, avoiding the risk that an excessively wide scope of patent protection prohibits future inventions.

2. Moderate and reasonable scope of patent protection has become the basis of the balance of interests in the patent law.

The balance of interests in the patent law is mainly to ensure the public's necessary access to and acquisition of patented technology, while the patentee determines the moderate and reasonable scope of protection in the system design of the patent law, and makes an appropriate and reasonable explanation and application of the scope of patent protection in the implementation of the patent law. Therefore, a moderate and reasonable scope of patent protection is also of great significance in the balance of interests in patent law. Generally speaking, at different stages of the patent system, the strength and scope of patent protection are different, even great differences, due to the differences in the impact of technology on economic and social development. Generally speaking, the level of patent protection has a trend from low to high. However, no matter at what stage of a country's economic and social development, the patent law always needs to be followed on the basis of ensuring the necessary monopoly protection to stimulate invention and creation, and at the same time ensuring the public's necessary access to technology and information. As some foreign cases have pointed out, according to the incentive theory of patent law, the proper scope of patent right is "a matter of balancing the interests of broader protection"-the task of defining the limited monopoly right granted to inventors involves, on the one hand, the interests of inventors in controlling and utilizing their inventions, on the other hand, the difficult balance between the competitive interests of society in the free flow of ideas, information and commerce [9]. This balance requires avoiding the extremes of over-protection and under-protection of patents. Excessive protection of new technology patents will cause an imbalance between the incentive for innovation and the potential ability between the initial invention and subsequent inventors.

From the perspective of the system design of the patent law, this appropriate and reasonable scope of protection at least involves the following issues:

(1) Reasonable definition of the object of patent right

In a certain society, which inventions should be included in the object of patent protection and which should not be included in the object of patent protection need to be based on the social and economic development at that time, the overall level of intellectual property protection, the advantages and disadvantages of whether the object is included in patent protection or not, especially the advantages and disadvantages of patent protection. In principle, the scope of the object of patent protection should be adapted to the economic and technological development at that time.

Looking at the history of the patent system, we can draw a conclusion that the object of patent protection tends to expand. With the improvement of patent protection level, the scope of patent protection object needs to be expanded. However, in the expanded patent protection object, there is still the problem of determining the appropriate scope of protection. For example, when the gene field becomes the object of patent protection, it cannot be understood that all gene technologies should be included in the object of patent protection. The patent protection of genes is accompanied by strict restrictions on related topics. Methods such as cloning human beings, changing the genetic identity of human reproductive system and changing the genetic identity of animals can not but become the theme of gene patents.

(II) Reasonable determination of the content and exercise of the patent right

The patent law gives the patentee a series of exclusive rights. For example, according to the provisions of China's Patent Law, the scope of the patent right for invention or utility model includes prohibiting any unit or individual from manufacturing, using, selling, offering for sale, importing its patented products for production and business purposes without authorization, or using its patented method and using, selling, offering for sale the products directly obtained according to the patented method. However, the exercise of these exclusive rights of the patent right should not restrict the public's normal access to the patented technology and related knowledge and information, nor should it hinder the market circulation of patented products loaded with patented technology. In this way, there are institutional arrangements in the patent law that are not regarded as patent infringement, such as "exhaustion of patent rights" and "exclusive use of patents for science and experiments". In particular, in the "infringement exception", the protection of the interests of the first inventor requires that the patent law make appropriate arrangements for the interests of the "first user" of the patent, so as to safeguard the fair and just value of the law pursued by the patent law and the effective distribution and use of social resources. In fact, from the provisions of patent laws in various countries on the issue of prior use, the interest coordination relationship between the patentee and the prior user typically embodies the spirit of balance in patent law.

furthermore, the reasonable determination of the content and exercise of patent rights embodies the principle of limited monopoly on patent rights. The limited monopoly principle is convenient for the subsequent inventors, who would have invested in research and development costs in the case of absolute monopoly, but after the first limited monopoly was established, it was not needed. This really saves social resources and promotes the effective distribution of resources.

(III) Definition of proper and reasonable protection period of patent right

The patent period is related to the patent policy, that is, it embodies enough incentives for the patentee, enough time to recover the investment, and the guarantee for the public to have free access to knowledge and information. Patent right as a monopoly