假冒专利罪疑难问题探讨

假冒专利罪保护的法益是超个人法益,因此,假冒并不存在的他人的专利,以及未获专利却谎称已获专利的行为,构成假冒专利罪;非法实施他人专利的专利侵权行为,从应然的角度讲,应纳入刑法规制的范畴,但从现行立法规定来看,无法以假冒专利罪定罪处罚;在生产、销售的伪劣商品上假冒专利,或者还假冒他人注册商标的,均应数罪并罚;专利权的刑法保护以选择集中型和散在型相结合的立法模式为宜。     

The contract theory of patents

Two distinct theories of patents, the “reward theory” and the “contract theory,” are customarily adopted by the courts to justify the patent system. The reward theory maintains that the function of the patent system is to remunerate successful innovators so as to encourage R&D effort. In contrast, the contract theory holds that the function of the patent system is to promote the diffusion of innovative knowledge. Assuming that in the absence of patent protection innovators would rely on trade secrecy, it views patents as a contract between innovators and society whereby a property right is granted in exchange for disclosure.This paper develops an economic analysis of the contract theory of patents. To disentangle the disclosure from the reward motive for granting patents, we assume that the innovation process is entirely serendipitous, so that R&D effort is not a concern. Our main finding is that the disclosure motive alone suffices to justify the grant of patents. The optimal patent duration should strike a balance between the incentive to induce disclosure and the aim of limiting the monopoly distortion induced by patents.     

Patents impediment or expedient to technology transfer

This paper examines the role that patents play in transferring technology. The history of our patent system and the requirements for patentability are reviewed. The option of keeping an invention as a trade secret rather than applying for a patent is presented. The paper also discusses the rationale behind the government’s change in its policy which permits exclusive licensing of public-owned patents. The author concludes that patents are not a barrier but a significant help in promoting technology transfer.     

Patenting nanotechnology

Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.     

我国医药发明专利试验例外制度研究

医药发明专利试验例外作为我国专利法上一项新生的侵权抗辩事由,在实施中尚缺乏应有的制度保障。通过追溯医药发明专利试验例外的起源和发展,考察主要国家医药发明专利试验例外制度的具体内容,分析了我国医药发明专利试验例外在实施中将面临的困惑,并从适用范围、专利补偿期限、专利链接制度三方面入手,对我国医药发明专利试验例外制度的完善提出了建议,以期能充分实现专利药物制造商与仿制药物制造商、药物制造商与社会公众之间的利益平衡。     

Patently designed and trade marked: MMORPGs

Legal context: A market has grown around massively multiplayer online role-playinggames (MMORPGs) and a lucrative online market has emerged outsidethe games for the sale of game characters and items. Much discussionand debate have focused on the copyright issues and the roleof End User Licence Agreements (EULAs), and strong criticismshave been levelled at those EULAs that give game providers IPownership and rights over any dealings with the game charactersand items. MMORPGs also raise legal issues in other IP law areasof trade marks, designs, and patents, and this article willdeal with these. Key points: Trade marks can be a powerful tool to protect the creativityof online characters and items but the first issue that needsto be considered is whether these creations in the online worldcan be trade marked. Similar considerations exist for patentsand designs. Further, there are also issues with trade marks,patents, and designs properly registered in the real world beingused in MMORPGs by those who are not the owners. The ownersof these registered IP rights would obviously wish to protecttheir interests to the fullest. Practical significance: There have been a number of issues and debates raised concerningthe game characters and items between game developers, gamersand farming companies. This article examines the key trade mark,patent and design law issues at stake.     

What's mine is mine and what's yours is mine too: Converging U.S. intellectual property exhaustion doctrines

With the increasing dispersion of intellectual property comes the intellectual property rights owner's continued desire to retain that part of the equation for which the bargain was struck. In terms of patents, the patentee strikes a deal to disclose the invention to the public in exchange for a monopoly over its use for a limited term. Copyright holders contribute their works to the intellectual pool receiving value by sale, lease or license. In 2012–13, the U.S. Supreme Court was tasked with delineating the realms of two intellectual property exhaustion doctrines and answering the question of where to draw the line with regard to an IP owner's ability to control the protected invention or work via patent or copyright, respectively. In one case, the Court permitted the intellectual property owner to restrict a subsequent purchaser's use of the product subject to protection, while in the other case the Court rejected the intellectual property owner's attempt to control the downstream use or resale of the product. This article discusses the relevant intellectual property exhaustion doctrines, analyzes and reconciles the Court's decisions in these cases, and provides guidance for navigating restrictions on use of U.S. protected products and works around the globe.     

The transfer of public science to patented technology: A case study in agricultural science

One of the most difficult challenges in technology transfer is to measure the movement of knowledge from basic scientific research to industrial technology. This paper will report on a study of the linkage between science supported by the Agricultural Research Service (ARS) and patented technology. This study traced the citations from U.S. patents issued in 1987–88 and 1993–94 to scientific research papers linked to the U.S. Department of Agriculture (USDA). The number of patent citations to ARS papers, and to other USDA-supported papers has increased fourfold over the six-year period. A distinct difference also exists between the patent-cited ARS papers and patent-cited extramural USDA-supported papers: ARS papers are in more agriculturally related journals, while the extramural papers were in more basic and biomedical journals. USDA-supported papers were overwhelmingly cited by U.S.-invented patents (in a patent system in which half the patents are foreign-invented). In the primary field of ARS papers (Biology), they are cited much more often by patents than Biology papers from any other publishing organization. Since the publishing organizations and support sources of all the papers cited in these patents have now been identified, we can study the transfer of scientific results to patented technology by institution, by agency, or by any other category of patent or paper holder. The authors thank the Agricultural Research Service of the U.S. Department of Agricultural, especially Dr. Richard Parry, for this paper' use of the study performed for them by CHI Research, Inc. (Grant number 59-0790-6-054)     

非法实施发明专利入罪的认识误区及克服

加强专利权保护是形势使然。专利权具有无形性、公开性和非竞争性,容易受到侵害。专利民事司法保护存在刚性不足、赔偿数额认定难等局限。专利行政执法对效率的追求造成程序监督弱化。刑法具有制裁手段的严厉性和“二次保障性”特征,遏制专利侵权优势明显。以专利权系私权、专利权具有不确定性、专利案件审理存在技术性难题为由反对非法实施发明专利侵权入罪的主张并不成立。专利刑事立法应当从“权利救济”转向“法益救济”,重构有关专利犯罪客体,增设非法实施发明专利罪,把故意侵犯发明专利且情节严重的行为规定为犯罪。     

《专利法》修订中的强制许可

专利权人获得专利后．即拥有了对实施和允许他人实施其发明创造的排他权利。但是．实施专利既是专利权人的权利．也是专利权人的义务。如果专利权人不实施专利，却利用专利权形成的垄断阻碍他人实施其专利．则是一种滥用专利权的行为。允许国家专利主管机关在一定条件下颁发专利强制许可．可以防止专利权人不合理地行使其独占权，维护国家和公众的利益，增进公共福利。     

专利权垄断性的法哲学分析

专利权具有垄断性但不是法律上的垄断权。专利权客体的本质是技术方法。专利权客体通过权利说明书外化而具有可审查性;专利权客体内化和物化为专利产品而具有财产内容。专利权垄断性是专利法比照物权设立的对抗他人效力的权利逻辑范围。专利法是国家以技术进步为交易目的、在技术发明人和社会公众之间的“对价”或衡平机制。专利产品垄断市场份额是市场开发的结果而不是制度配给。     

Canada ordered to implement WTO ruling against "stockpiling" of generic drugs

In the last issue, we reported on a mixed World Trade Organization (WTO) ruling regarding Canada's patent laws, based on a complaint by the member states of the European Communities (joined by the United States). In March 2000, a WTO Panel accepted the provision in Canada's Patent Act that creates an "early working exception" to patent rights--in other words, that allows a third party to use a patented invention during the term of patent protection, as long as the use is for obtaining regulatory approval of an equivalent product to be sold once the patent expires. This was an important victory from the perspective of allowing earlier access to generic versions of patented drugs.     

An Economic Justification for Open Access to Essential Medicine Patents in Developing Countries

This paper offers an economic rationale for compulsory licensing of needed medicines in developing countries. The patent system is based on a trade-off between the "deadweight losses" caused by market power and the incentive to innovate created by increased profits from monopoly pricing during the period of the patent. However, markets for essential medicines under patent in developing countries with high income inequality are characterized by highly convex demand curves, producing large deadweight losses relative to potential profits when monopoly firms exercise profit-maximizing pricing strategies. As a result, these markets are systematically ill-suited to exclusive marketing rights, a problem which can be corrected through compulsory licensing. Open licenses that permit any qualified firm to supply the market on the same terms, such as may be available under licenses of right or essential facility legal standards, can be used to mitigate the negative effects of government-granted patents, thereby increasing overall social welfare.     

Patents with an "I" = patients

The authors address how patent protection in the United States is often quite narrow in scope, difficult to obtain, and insufficient in duration, thus stifling research and development of potential breakthrough pharmaceuticals. The authors further posit that countries that have enacted stronger intellectual property rights and research incentives have seen tremendous increases in foreign direct investment. In addressing critics of the current patent system, the authors show that alternatives to biotechnology patents would not demonstrably improve innovation and development of beneficial medicines. The authors conclude that given the substantial evidence of the patent system's benefits, and the mere speculation that patents have a deleterious effect on patients, no suggestions currently proposed to replace or improve the patent system will have the same beneficial effects for patients.     

WTO: US and Argentina settle dispute over patents and data protection

In May 2000, supplementing an earlier complaint filed in May 1999, the US filed a complaint against Argentina, alleging that its patent laws violate the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement). The gist of the US complaint was that Argentina's law failed to provide: (1) adequate protection against "unfair" commercial use of undisclosed test data submitted in order to get market approval of pharmaceutical products; (2) certain safeguards for compulsory licences on an invention granted on the basis of inadequate working by the patent holder; and (3) adequate measures to prevent infringements of patent rights. The US also alleged that Argentina denies certain exclusive rights of patent holders, such as the exclusive right to import the patented product into the country. At the end of May 2002, the US and Argentina notified the WTO that they had reached a "mutually agreed solution," without prejudice to their respective rights and obligations under WTO agreements, and the US has withdrawn its complaint.     

Gendered ‘Objective’ Patent Law: Of Binaries and a Singularity

Patent law protects the technical. It is seemingly objective in terminology and application. Yet studies show that males are significantly more likely than females to be the inventors of patented inventions. Patenting is not objective, it is gendered. The reasons for this are multiple and include the fact that patent law itself, including its presumptions and interpretation, is gendered. This article examines how patent law reflects multiple gendered binaries, despite being drafted in ostensibly neutral terms. These serve to favour masculine modes and fields of creation, while ignoring and devaluing feminine knowledge and ways of knowing. We should be concerned that patent law is gendered because patents affect wealth distribution, what is invented and commercialized, and what information and knowledge is disseminated, built upon, and viewed as valuable. Thus, instead of embodying gendered binaries, the law should reflect a singularity – a unique point, where the system degenerates or diverges to recognize and encourage the multiplicity of ways in which invention and innovation can and do occur, beyond socially constructed binaries.     

PATENT HOLDUP AND OLIGOPSONISTIC COLLUSION IN STANDARD-SETTING ORGANIZATIONS

Current controversies over patent policy place standard-settingorganizations (SSOs) on a collision course with antitrust law.Recent theoretical research conjectures that, in an SSO, patentowners can "hold up" patent users in the sense of demandinghigh royalties for a patented input after the SSO has adoptedthe patented technology as an industry standard and manufacturerswithin the SSO have incurred sunk costs to design end productsthat incorporate that standard. Consistent with this conjecture,actual SSOs have recently sought no-action letters from theAntitrust Division for a variety of amendments to SSO rulesthat would require or request, at the time a standard is underconsideration, the ex ante disclosure by the patent owner ofthe maximum royalty that the patent owner would charge underthe regime of fair, reasonable, and nondiscriminatory licensing.This price information—which is characterized as the "cost"of the patented input—would, under at least one recentSSO rule modification, be a permissible topic for potentialusers of the patent to discuss when deciding whether to selectit in lieu of some alternative standard. This exchange of informationamong horizontal competitors would occur ostensibly becausethe cost of the patented technology had been characterized assimply one more technical attribute of the standard to be set,albeit an important technical attribute. The Antitrust Divisionand the Federal Trade Commission have jointly stated that suchdiscussion, by prospective buyers who are competitors in thedownstream market, of the price of a patented invention thatmight become part of an industry standard should be subjectto antitrust scrutiny under the rule of reason rather than therule of per se illegality. The rationale that the antitrustagencies offer for applying the rule of reason to such conductis that such horizontal collaboration might avert patent holdup.The Antitrust Modernization Commission (AMC) similarly endorsedthe view that rule-of-reason analysis is appropriate for exante discussion of royalty terms by competing buyers of patentedtechnology. This rule-of-reason approach, however, is problematicbecause it conflicts with both the body of economic researchon bidder collusion and with the antitrust jurisprudence oninformation exchange and facilitation of collusion. Put differently,because of their concern over the possibility of patent holdup,the U.S. antitrust agencies and the AMC in effect have indicatedthat they may be willing in at least some circumstances to forgoenforcement actions against practices that facilitate oligopsonisticcollusion by encouraging the ex ante exchange of informationamong competitors concerning the price to be paid for a patentedinput as an implicit condition of those competitors' endorsementof that particular patented technology for adoption in the industrystandard. However, neither the proponents of these SSO policiesnor the antitrust agencies and the AMC have offered any theoreticalor empirical foundation for their implicit assumption that theexpected social cost of patent holdup exceeds the expected socialcost of oligopsonistic collusion. This conclusion does not changeeven if one conjectures that such collusion will benefit consumersby enabling licensees to pass through royalty reductions intheir pricing of the downstream product incorporating the patentedtechnology. Proper economic evaluation of the plausibility ofthe pass-through conjecture will require information about thecalculation of royalty payments; the demand and supply elasticitiesfacing the licensees; and the structure of any industries furtherdownstream between the manufacturer and the final consumer.Consequently, the magnitude of this effect will likely be amatter of empirical dispute in every case. Moreover, such ajustification for tolerating horizontal price fixing finds nosupport in antitrust jurisprudence. Given the analytical andfactual uncertainty over whether patent holdup is a seriousproblem, it is foreseeable that antitrust questions of firstimpression will arise and affect a wide range of high-technologyindustries that rely on SSOs. However, there is no indicationthat scholars and policy makers have seriously considered whetheroligopsonistic collusion in SSOs is a larger problem than patentholdup.     

Human Genome and Patent

The first phase of the Human Genome Project came to an end by the summer of 2000. We have a fairly complete and accurate listing of all the genes in a typical human being. Apart from the tremendous impact that this knowledge will have on health care, it also represents a patent rush where both private and public institutions are trying to gain temporary control, through patents, over the use and reproduction of genetic information. This paper introduces the reader to issues involving the patent ability of genes, the tests used by patent offices to award patents. The ownership of the human genome--and the access to the tools and databases necessary to make sense out of the millions of bits of information that make up the estimated 100,000 human genes--constitutes one of the hottest debates in the public policy arena not just in the field of science but sociology, politics, law and ethics.