从法律经济学的角度看专利制度的利弊——兼谈我国《专利法》的修订

现代专利法均毫无保留地肯定专利制度对经济发展的积极促进作用,但是,经济学家却对专利制度总体上的成本与效益众说纷纭。多数学者怀疑甚至否认专利制度的经济效益可能大于其经济成本。经济学研究成果表明专利制度会引起的巨大经济成本,该成本可能超出专利制度潜在的经济效益。因此,各国专利法应在保护专利权和公共利益之间达成一种平衡,从而减少专利制度的成本。我国的专利法过于强调专利制度的积极作用,对该制度的潜在消极影响估计不足,有待于进一步修订。

An Approach of the Economics of Law to the Advantages and Disadvantages of the Patent System-While coping with the necessary amendments to China''''s Patent Law

The current patent laws in various jurisdictions claim that the patent system has the effect to facilitate economic development. However, the views of economists on this matter have been vastly divided. Most commentators are skeptical about the net economic gain of the patent system considering its enormous economic costs. The analytical method from the economics of law shows that the economic benefits of the patent system may well be surpassed by its enormous potential cost. Thus, the patent law should strike a balance between the protection of patent rights and public interest in order to reduce the cost of the patent system. Viewed in this light, China's patent law seems to overemphasize the positive effect of the patent regime and underestimate its negative effect. Thus, the current law needs to be revised in the light of economic efficiency.