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How is a patent open license different from other licenses?

Release Time：

2022-08-21

Comparison of patent open licenses and other licenses

Compulsory license for a patent means that the patent administration department under The State Council, in accordance with the provisions of the Patent Law, directly permits other entities or individuals to exploit the patent without the consent of the patentee. Compulsory patent licensing is "involuntary", and its purpose is to prevent the patentee from abusing the patent right and safeguard the national interests and social public interests. Compulsory patent licensing may also be interfered with by public rights in the payment of royalties to the patentee. The patent open license is "voluntary", more respect for the patentee's autonomy, including the choice of the payment method and standard of the license fee. Compulsory patent licenses exclude design patents, while open patent licenses include all types of patents. In general, compulsory licensing of patents is strictly limited.

A general license for a patent means that the licensor licenses the patent to others within the scope of the agreed license to exploit the patent, and may exploit the patent himself. Patent open license is a special form of patent general license, both of which play a positive role in patent promotion and application. Patent open license is more open and convenient, for non-specific people, to achieve patent "one-to-many" fast licensing. Non-patent open license patent general license is not able to enjoy the annual fee reduction and other policies, but also need to negotiate with the licensee one by one, the transaction cost is high, but the licensee can be screened.

Exclusive license of patent means that the licensor licenses the patent to only one licensee within the scope of the agreed license to exploit the patent, but the licensor can exploit the patent by itself according to the agreement. When it does not have the ability to implement for the time being, it can retain the right to implement the patent by itself through the exclusive license of the patent, and it will not lose its effectiveness because the patent is asleep. Patent exclusive license is inferior to patent open license in technology promotion. If the licensor and licensee do not negotiate well, exclusive licensing of patents may also lead to flooding of the market for patented products and low-price competition, just as open licensing of patents does.

Patent exclusive license means that the licensor licenses the patent to only one licensee within the scope of the agreed license to exploit the patent, and the licensor shall not exploit the patent according to the agreement. Compared with patent open license, patent exclusive license strengthens the interests of the licensee, and the license cost is higher, but it is not conducive to the promotion of technology, and directly excludes the implementation of the patent by the patentee. The patent exclusive license can ensure that the patented products do not flood the market and compete at low prices.

Patent sub-license means that the licensor and the licensor agree in the patent exploitation license contract that the licensee can sub-license the patent to others. The patent sub-license must be clearly stated in the contract, otherwise even if it is an exclusive license, there is no sublicensable right. Patent sublicense directly deals with the scope of patent exploitation, which facilitates the licensee to better implement the patent and saves the negotiation cost of the patentee. Compared with patent open license, patent sub-license is more flexible and gives the licensee more rights.

Patent cross-licensing means that two or more patentees grant each other the right to exploit their patents under certain conditions. Patent cross-licensing is for at least two patents, while patent open licensing is for only one patent. Patent cross-licensing can solve the problem of mutual infringement in the process of patent implementation, reduce litigation costs, and promote the promotion of innovative technology. Under certain conditions, patent cross-licensing will become a kind of compulsory patent licensing, such as the situation stipulated in Article 56 of the Patent Law, there will be certain public power intervention, which may exclude the autonomy of the patentee, and it also needs to invest in negotiation costs.

Peroration

As a new patent system, patent open license is introduced into China, which is an important system in line with the strategy of strengthening China's intellectual property rights. The patent open license system makes up for the legislative gap, makes the patent trading market follow through the establishment of an open and transparent trading platform, 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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