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Patent open license

Release Time：

2022-08-21

"The patent open license system fills the legislative gap, establishes an open and transparent trading platform, makes the patent trading market follow, improves the convenience of transactions by limiting the exclusivity of patents, and achieves the purpose of increasing the conversion rate of patents."

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In recent years, the layout of the transformation of scientific and technological achievements has been gradually carried out in our country. From relevant laws and regulations to decision-making and deployment, in the process of becoming a powerful intellectual property power, the establishment of patent open licensing system has become increasingly popular, and the patent open licensing system has gradually entered the research field of scholars. On December 2, 2015, The State Council officially published the revised Draft of the Patent Law, which clearly stipulated the patent open licensing system for the first time in China. On October 17, 2020, the decision to amend Patent law of China (the fourth amendment) was passed, which added three laws on patent open license, and the patent open license system was officially created at the legal level.

The concept of patent open licensing

Patent open license means that after the right holder has obtained the patent right, he/she voluntarily submits to the national patent administration department a declaration of open license, specifying the license fee, which shall be announced by the national patent administration department. During the patent open license period, any person may exploit the patented technological achievement in accordance with the conditions of the patent open license.

The characteristics of patent open license

1. Voluntary

It is voluntary for the patentee to propose and withdraw the declaration of open license, and it is voluntary to choose the method and standard of payment of the license fee, as long as it is handled in accordance with the prescribed procedures. The patentee with an open license may also voluntarily negotiate with the licensee on the license fee and grant a general license that is not an open license. This is also the main difference between patent open license and patent compulsory license, reflecting the patentee's voluntary disposition of private rights.

2. Openness

Any unit or individual that pays the license fee in accordance with the published method or standard for the payment of the license fee may exploit the patent with the open license declaration, weaken the exclusive nature of the patent, open it to unspecified persons, and improve the efficiency of patent transfer and transformation.

3. Convenience

Any entity or individual that wishes to exploit a patent under open license shall, after notifying the patentee in writing and paying the royalty in accordance with the published method and standard for the payment of the royalty, obtain the license for exploitation of the patent. Both sides do not need to spend a lot of manpower, material resources and time to negotiate, which is very convenient. The patent administration department of The State Council announces the patent opening license statement, and all the public, including potential licensees, can access the relevant information through the official channels of the State Intellectual Property Office, and it is very convenient for implementing entities to obtain patent information. In addition, where a declaration of open license is proposed for utility model and design patents, a patent evaluation report shall be provided, and it is more convenient for the implementing body to evaluate the stability of the published patents. In general, the patent open licensing system brings convenience to the transaction between the licensor and the licensor. Source: IPRdaily Author: Tang Yi Jiuding Tianyuan

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