基于博弈分析的开放许可制度优化研究

Research on Optimization of Open Licensing System Based on Game Analysis

摘要:

开放许可制度即当然许可制度,指专利权人向专利行政部门提交声明并经专利行政部门公告后,同意任何人可以在满足声明中的条件的基础上,不经其允许即可实施其专利的一种制度。该制度有利于科技成果的转化与传播,但其良好的运行有赖于制度设计上的科学性与合理性。以古诺竞争模型为基础,通过构建序贯博弈机制,分析专利权人和专利实施主体在专利交易市场中的行为,发现在现有市场和法制环境下,无论专利权人是否开放许可,专利实施主体都会选择侵权生产。对此,可以采取规定差异化的专利年费减免制度、放宽对专利开放许可声明内容的约束等措施,对专利开放许可制度进行优化,从而激励专利权人实施开放许可以及专利实施主体接受开放许可。

Abstract:

The open license regime is also called the license of right, which refers to a regime whereby the patentee, after submitting a declaration to the patent administration department and being announced by the patent administration department, agrees that any person may, on the basis of satisfying the conditions in the declaration, exploit his or her patent without his or her permission.The system is conducive to the transformation and dissemination of scientific and technological achievements, but its good operation depends on the scientific nature and rationality of the system design.Based on the Cournot competition model and through the construction of a sequential game mechanism, this paper analyzes the behavior of the patentee and the patentee in the patent trading market, and finds that under the existing market and legal environment, the patentee will choose the infringing production no matter whether the patentee opens the license or not.Therefore, measures can be taken to optimize the patent opening license system, such as providing differentiated annual patent fee exemption system and relaxing restrictions on the contents of patent opening license declaration, so as to encourage the patentee to implement the opening license and the subject of patent exploitation to accept the opening license.