论临时保护请求权

专利法赋予了发明专利申请人一定限度的临时保护期请求权,但对该权利的规定归于模糊,其法律属性有待研究。实际上,临时保护期请求权不仅不是一个独立的权利,而且是一个极为孱弱的期待性权益,法律对其救济极为有限,不足以保护专利申请人的合法利益。赋予申请人完整的请求权利不会导致权利的滥用。法律有必要考虑做出适度的制度安排以确保专利申请人的利益,真正促进科技创新,实现知识产权法特别是专利法与民法制度的衔接。

On the Claim of Temporary Protection

The Chinese patent law has acknowledged a limited claim of temporary protection for the proposer of patent; it is necessary to research its attribute more because its legislation is very faint. Actually, not only is claim of temporary protection a independent rights, but also a poor rights. Besides, the relief from legal system to temporary protection is also very limited, so it is inadequate to protect proposers' interests. At the some time, even if it is endued as a complete right by our patent law, this kind of legislation will not lead to abuse inevitably by proposer. It is indispensable to consider the question of claim of temporary protection in order to promote human's innovation and reaching the goal of linking up civil law and intellectual property law, especially for patent law.