The Understanding of Patent Exploitation Permission in Art. 866 of the Chinese Civil Code

According to Chinese civil law, the licensor’s permission to exploit a patent is clearly to be regarded as enabling the use of the patent. However, under certain circumstances, this seemingly correct understanding sounds somehow oversimplified, especially when it intersects with Chinese patent law. And this understanding may, in the absence of a clear explicit agreement, cause several problems (such as the subjective impossibility of performance) under the Chinese legal framework. Although the concept of a negative patent license is not in conformity with the legislative intent of the Chinese Civil Code, it could be a solution to these problems.

Promoting Electric Vehicle Cell Innovation Diffusion Considering Patent Licensing Strategy: A Combination of Evolutionary Game and Optimization Algorithm Approach

Electric vehicle cell industry is an emerging area with fierce competition on technical innovation, in which the patent holder can choose different innovation diffusion options to maximize the return; however, the strategy is unclear in certain scenarios. We tried to explain the question of how to maximize the patent holder’s return by appropriate patent license strategy to promote EV cell innovation diffusion, when competition and patent licensing relationship exist in the supply chain. A multistage and multichannel diffusion model of EV cell comprising the patent holder, EV cell producer and EV producers is developed; the evolutionary game is analyzed considering the competition among same stage players and patent licensing relationship among different stage players; and an optimization algorithm is introduced to find the maximum weighted object function of the patent holder. We established the multistage and multichannel diffusion model and found a nonlinear complex relationship between patent holder object function and the key factors including patent royalty pricing and innovation advantage coefficient; in addition, an optimization algorithm is developed based on adopters’ decision-making related with competition and patent licensing.

Big Pharma and Investment Arbitration

Investment Arbitration in the pharmaceutical sector raises some specificities. Regarding jurisdiction of arbitral tribunals, it is questionable whether the registration of a patent abroad or a patent license granted to a foreign partner constitutes an investment. Similarly, as health products are not ordinary goods, arguments according to which marketing authorizations or monopolies granted constitute an investment are real issues. On the merits, the invalidation of a patent, the refusal or withdrawal of a marketing authorization or the decision of a state authority to end a monopoly can be analyzed as a violation of some of the commitments made by States in the treaties they conclude. The aim of this study is to address these questions thanks to the awards already rendered, making it a useful tool for countries -like Vietnam- that wish to develop their pharmaceutical sector by attracting foreign investors.

THE MONOPOLY PRACTICE AND UNFAIR BUSINESS COMPETITION IN THE TECHNOLOGY TRANSFER ACTIVITY THROUGH THE FOREIGN PATENT IN INDONESIA

It is a common knowledge that technology development shall be in line with the development of a nation. This fact is raising the need of developing countries as Indonesia to maximize potential in the field of technology. However, it is not easy as it sounds, there are many obstacles for a country to develop its potential in technology, notably for the expert in the relevant country to master the necessary skills. Due to this limitation, many countries are beginning to fill-in the gap by registering license of foreign patent. It is expected that the use of foreign patent will replace the higher cost and longer time needed in developing local technology in the developing countries. Unfortunately, the use of foreign patent license does not itself automatically enhance one’s ability to master the necessary skills. Many cases where developing countries were deceived by the ‘grant-back’ clause attached to the foreign patent license. The licensee’s position is consequently considered has lower than of the licensor, which in its turn may rise monopoly practice and unfair business competition. This study is conducted with the purpose to formulate an effective technology transfer through the licensing of foreign patent that can refrain from the repetition of monopoly practice and unfair business competition, according to the TRIPs signed by WTO and the positive law in Indonesia. This study is using juridical-normative approach as the methodology of research, it also use analytical approach through the Law Number 13 of 2016 concerning Patent; Law Number 5 of 1999 concerning Prohibition of the Monopoly Practice and Unfair Business Competition as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights signed by the World Trade Organization, with respect to the license agreement of the foreign patent. Based on the issue as established previously in this journal, the expected outcome of increased information dissemination towards countries using patent licensing agreement in technology and information development related to any matter in intellectual property specifically in licensing agreement, which has higher possibility for Monopolistic Practices and Unfair Business Competition. Therefore, shows that in principle in order to prevent the licensing of foreign patent to lead onto the monopoly practice and unfair business competition, a country must establish a controlling entity to supervise the execution of the foreign patent and at the same time, enacting harmonious rules and regulations with such supervision.

Perlindungan Hukum terhadap Penerima Lisensi Paten dalam Alih Teknologi

License is a contract between the licensor (Licencor) with the licensee (License) in which the licensor with a payment and in certain circumstances gives permission to the licensee to use an intellectual property rights (intellectual property rights). Regarding the types of licenses according Lee and Davidson, differentiate into 2 (two) types of licenses, namely Exclusive and Non Exclusive licenses. Patent license agreements are basically subject to and refer to the provisions of the agreement adopted by the Indonesian State in the Indonesian Civil Code. In this day and age the licenses as outlined in the agreement have the form of standard agreements or standard contracts, in a licensing agreement because it uses a standard contract, it has the potential to cause an imbalance of the parties because some licensing agreements (Lisensor) use clauses that can harm the licensee (License). Refressive legal protection is used, if a license agreement with a standard contract or standard contract used by the licensor of the patent (Licencor) to the recipient of a patent license (License), if it violates a subjective condition in making a patent license agreement then it will cause legal consequences can be canceled (Vernietigbaarheid) whereas if it violates an objective condition it will have legal consequences null and void (Neitigbaarheid).

A Brief analysis of compulsory license of drug patent under public Health Crisis

In the face of the new crown epidemic, the implementation of the drug patent compulsory licensing system is one of the problems that needs to be solved urgently. At present, my country has established a relatively complete patent compulsory licensing system, but the system still presents a "zero implementation" status in my country. my country should learn from foreign experience, improve the system design of my country's pharmaceutical patent compulsory licensing by conditionally liberalizing the scope of application subjects, raising patent license fees and other measures; at the policy level, preferentially adopt negotiation methods to weaken the trade frictions caused by the implementation of patent compulsory licensing , To balance the incentive mechanism for pharmaceutical patent innovation, and actively promote the implementation of the pharmaceutical patent compulsory licensing system in my country.

Kimble v. Marvel: A Misconceived Affirmation

A clause in a patent license agreement which requires the licensee to continuously render royalty payments even after the intellectual property rights have expired has been a very controversial issue in practice. With the infamous United States Supreme Court Ruling of Brulotte v. Thys, and its subsequent affirmation in the case of Kimble v. Marvel, the legality of continued royalties seems to be a settled provision of law in the American Jurisprudence. However, the judgement rendered in the case of Kimble v. Marvel begs the question as to whether the affirmation was by reason of sound judicial interpretation or the coercion of stare decisis. The interplay between the rule of reason and the per se rule on one hand, with that of the patent misuse theory on the other, was alarmingly unclear. The three were presented as being so closely related that the two distinct dynamics of law could very well be addressed as excessive legislation on the same subject-matter. The present research seeks to analyze the 2015 ruling of Kimble v. Marvel, without the interference of stare decisis and defines the contours under which the judgement was rendered (patent law or anti-trust). Most importantly, the paper will assess the Indian jurisprudential stand with reference to continued royalties, both within patent law and the competition law.