中国专利强制许可制度的政治哲学研究
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Preface

Renewable energy sources,such as wind,solar,geothermal,ocean,biomass,and waste-to-energy,have attracted wide attention and developed rapidly in many parts of the world.However,most of renewable energy patents are held in developed countries,which play important roles in developing renewable energy technology.This restricts the use and development of renewable energy sources to some extent.

A compulsory license permits a government(or a third party authorized by the nation)to use a patented invention without permission of the patent owner in exchange with the payment of a government's determined royalty.Therefore,in order to promote renewable energy technology in developing countries,appropriate restrictions of the right of patentee of renewable energy technology are worthy of exploration.This paper purposes to argue that compulsory licenses should be introduced into renewable energy sector in China and to explore system design by means of analyzing a variety of interests stemming from a political philosophy perspective.

In Chapter 1,after making a review of existing researches including the literature on compulsory licenses,pharmaceutical industry and environment-related field,I pointed out the following limitations of existing researches.First,besides pharmaceutical industry there is no research from a perspective of political philosophy in renewable energy technology.Second,the research of compulsory licenses in a specific country is also rarely studied.China is undergoing problems by haze and looking forward to bringing about changes.Based on my assessment of the literature,the objective of my research is to analyze the current situation of Chinese compulsory license system and to propose a new mechanism of such license by developing concepts and ideas utilized in the politic-philosophical literature on the idea of interest.

In Chapter 2,I described the current situation of renewable energy patents,which are mostly held by businesses based in developed countries.This situation raises the challenges for developing countries that face environmental problems such as climate change,pollution and energy depletion.Next,the legal arrangements of compulsory licenses in pharmaceutical industry both in China and some other parts of the world are described.Observations shed a new light on the legal basis for possible compulsory license in renewable energy field.Most of the countries have reviewed legal regulations on compulsory license; however,only a few of countries have implemented it in fields including pharmaceutical industry in practice.

In Chapter 3,I talked about the three pairs of interest:interest as welfare and interest as resource;reflective interest and volitional interest; public interest and private interest.Among them,the conceptions of interest as resource,reflective interest and public interest are taken as supports for my research.In the part of interest in compulsory license,we can see a patentee,a licensee and consumers have different interests,and the interests of other parts will be improved except a patentee in compul-sory licenses whether in general or in pharmaceutical industry.

Next,in Chapter 4,I argued that interests in the field of renewable energy technology are not only relevant to the present generation living in China but also to other current peoples and future generations.Climate change and environmental pollution are threats to transnational interests,and resource depletion is closely related to the posterity's interest.Moreover,interest as resource and reflective interest of licensee and consumers will be promoted when compulsory license in renewable energy technology.

In Chapter 5,I made recommendations for system design.The current legal framework of compulsory license in China has no distinct rules of compulsory license governing renewable energy technology and lacks imple-mentation of the existing rules.In response to these,I proposed adding new clauses:increasing specific reasons for the purpose of the public interest to Patent Law,and enhancing the force of proposed program for the purpose of public interest to Measure for Compulsory License on Patent Implementation.Finally,some suggestions are made to meet implementation challenges,including a reasonable price and economic reward that may keep the incentive of a patentee.

Compulsory license is regulated by international treaties.Nevertheless,how to implement compulsory license depends on the laws in each country.In this paper,the objectives of my research include patent rights got in China as well as those invented in foreign countries and have been filed in China.Because compulsory license system is relevant with a variety of interests,the analysis of conception of interest is of great importance.In this paper,the research on compulsory licenses on renewable energy technology in China has been carried out from a perspective of political philosophy.From Chapter 3 and Chapter 4,it is concluded that the conceptions of interest as resource and reflective interest are appropriate.Taking advantage of these interest conceptions,I analyzed the Chinese legal system and made a conclusion that compulsory license system should be introduced into renewable energy technology.