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。

A Jurisprudential Analysis on the Characteristic of Monopoly in Patent

Although patent is monopoly in nature, it is not a monopoly in legal sense. The protected object of patent is technical process and can be reviewed through the booklet of right directions ; it internalizes and materializes to patented products and therefore became a kind of property. Patent's monopoly is the logic scope of the right against other people established by patent law with reference to property law. Patent law is the balance mechanism between inventor and public with the aim of promoting technical progress. The monopolization of market shares of patented products is the outcome of market development rather than systematic assigning.