Библиографическое описание:

Ли Д. The Exertion and Legislative Improvement to the Co-owned Patent Right in China // Молодой ученый. — 2015. — №21. — С. 617-623.



 

The system of the co-ownership has a long period of history, and relevant provisions are comparatively improvement in the China's Civil Law and regulation. In fact, in aspects of application, independent implementation, licensed use, transfer and judicial protection, the co-owned patent has significant particularity. The current China's Patent Law, Contract Law and Property Law have already made general regulation and provision on that, but they did not fully concern more about the particularity that the ownership of patent has. As a result, the exertion of the co-ownership by owners always comes across legal obstacles normally in practice. In order to further research as well as constantly improve the system for the co-owned patent, throughout the comparison with the proprietorship seems to be necessary as well as analysis the particularity of the ownership of patent.Additionally, relevant regulation and provision to the co-owned patent should also be sorted out, while analysis the existing problems. Therefore, in recognition of the formation of right, implementation, right to dispose, protection and other aspects, some effective and efficient proposal for improvement is supposed to express about the issue of ownership of patent.

Key words: co-owned patent, proprietorship, implementation of patent, right to apply for the patent.

 

Introduction

In practice, the co-owned patent is actually important form for patent, being existed. Independent inventions are definitely important, but for developing country like China still has majority of significant patent technology projects, their implementation cannot go anywhere fast without cooperation and collaborative innovation by multiple communities or individuals, precisely, such as specific ways like combination involving production, teaching & research as well as commissioned research. Therefore, it seems to be essential and may have far-reaching applications in solving legal issues in the process of formation and implementation for ownership of patent. The so-called ownership of patent refers to right of patent that two or more subjects could lawfully own together for one invention-creation. And it has particular legal characteristics stated as following:

Firstly, diversity of subject, namely, the subject for the ownership of patent is commonly two or more.

Secondly, the unity of the object, namely, invention is object for ownership of patent.

Thirdly, the coordination in the exertion of the right, namely, the exertion of the patent should be negotiated congruously by co-owners. In fact, there should be restrictions if anyone of co-owners is supposed to exercise the right independently, and the restriction is that the exertion of the right should be on the basis of addressing well the interests among each co-owners of the patent. In all conscience, different content of right also has different provisions, some rights are supposed to be unanimity by all co-owners; each part is not able to exercise independently [1].

Fourthly, the co-owned patent has dual character in terms of its contents, that is to say, internally co-owners exercise rights as well as fulfills obligations in accordance with their portions; while as a subject externally, is intimately bound up with right user and infringer.

  1.         Particularity of the co-owned patent

In recognition of the perspective of nature, the patent is a kind of property right with monopoly, and it has something in common with the ownership of property. Therefore, legal regulation and provision for co-ownership of property are also worth being as reference for regulating the co-owned patent. Throughout comparison with the co-ownership of property, the particularity of the co-owned patent is able to be analyzed objectively.

1.1       The co-owned patent and the co-ownership of property belong to the same hierarchy

In China, there is no too much discussion on the relationship between the co-owned patent and the co-ownership of property, the mainstream view is that two rights are the relation of inclusion, resulting from the fact that patent right belongs to a lower level of ownership right. Some scholars and experts consider that the intellectual property is a civil right, and it is one form of the ownership right and a special kind of ownership right [2]. I personally beg to differ, it can be seen from all regulations and provisions from most countries over the world, the intellectual property is excluded from the object of the ownership of property, and there is specific law to adjust the intellectual property. Therefore, these two rights are supposed to belong to the same hierarchy [3]. Although the intellectual property is always defined as a civil right in the China's legislation and civil law theory, and it sorts to a right adjusted by civil law together with personality right, property right and credit right, in fact, patent right and ownership right are component elements of intellectual property and ownership of property respectively, there is a parallel relationship between them and they belong to the same hierarchy.

1.2       The difference between the co-owned patent and the co-ownership of property

First of all, objects of the two kinds of co-ownership are not the same. In general, object is the transitive right for the co-owned patent, however, the object of the patent has particularity, which is reflected in the following aspects: On one hand, it is a technical proposal without materiality, although such technical proposal needs to be carried by properties, the carrier for carrying such technical proposal is not an object, that is to say, the object for the co-owned patent is intangible. On the other hand, the object of the patent has the particularity of inseparability, which is different from the fact that, the object of the co-ownership of property is divisible.

In addition, these two kinds of co-ownership also have different contents and scope of the right. The co-ownership is a typical ownership of property, and it includes rights, namely, right of possession, use, usufruct and disposition. On the contrary, the scope for the co-owned patent is not only wide in range, but also still in the ever-changing, precisely, the co-owned patent includes not only rights of manufacturing, distribution, offering for sale, import, licensing for use and transferring, but also rights from the perspective of prohibited provisions, on the basis of the China's Patent Law.

Furthermore, two kinds of co-ownership have different expression of value. Objectively, the major value for the ownership of property refers to the evaluation of 'object or substance', so its value is naturally as similar as the so-called 'object or substance', and the relevant evaluation system and methodology about the 'object or substance' seem to be relatively mature enough. Otherwise, the value for the co-owned patent does not stand for the value of the patent alone, that is the cost of the patent, and it is the expected value, depending on the benefits that may be arisen throughout the implementation of the patent.

Last but not the least, the confirmation forms for two kinds of co-ownership is not same. The patent is a right that is requested to disclose technology as condition, to protect the right as the content as well as get the nation's authorization as basis. Acquisition of right needs to be on the basis of legal regulations with lawfully application, formal examination, disclosure and authorization. However, the co-ownership of property is mainly confirmed throughout legal acquisition and possession.

  1.         Sort of relevant legislation for China's co-owned patent

There are clear regulations and provisions for the co-owned patent in China's Patent Law, for the procedure of patent exertion after the process of application and approval, principle of contract priority is also applied properly. That is, co-owners of the patent implement to prevail if there is an agreement. Each of the co-owners is able to implement separately or license to others for implementation in ordinary licensing, if there is no ostensive agreement. However, proceeds belong to each of the co-owners who once implemented the right, while the charge for use should be distributed among the co-owners if licensing others to implement the patent in ordinary way. In addition, if one of co-owners is supposed to implement the co-owned patent in any other ways, obtaining the consent of all co-owners is necessary [4]. Such provision in Article 15 of China's Patent Law although stipulates quite wide in range, but there is no specific and clear definition for the meaning of 'implementation'. Therefore, it seems to be much more difficult to create regulations with operability for application, specific form to implement, specific action of disposition and protection for the right.

2.1       Regulation to application for the co-owned patent

The Article 8 of the China's Patent Law stipulates that, the right to apply for patent belongs to unit or individual of cooperation, for invention and creation completed by cooperation [5]. And the Article 15 also stipulates that, the exertion to application for the co-owned patent should be subject to the consent of other co-owners, in case of no agreements [6]. In the meantime, the Article 340 of the China’s Contract Law stipulates that the ascription of the right to apply for patent should compliance with the principle of agreement priority for invention and creation completed by cooperation, and the right belongs to co-owners if there is no agreement in advance; additionally, the right to apply for patent is able to be transferred, and other co-owners have pre-emptive right [7]. However, the existing law and legal regulations have difficulties to cover all issues in practice, for instance, if research and development collaboration applicants cannot reach a consensus on the application, how could each co-owner apply separately? And, how to seek advice from collaboration subjects to apply for patent if one has been lost contract with others? Such questions still should be concerned about carefully by relevant authorized legislator.

2.2       Regulation to implement the co-owned patent

In recognition of the implementation for the co-owned patent, it consists of forms like independent implementation and implementation of licensing to others.

First of all, Article 15 of the China's Patent Law has stipulated that if there is an agreement about independent implementation among the co-owners, implementation should obey the agreement; if there is no prior agreement, each of co-owners is able to implement independently, and the income of the implementation belongs to the one who implemented, without assignment among all co-owners [8]. And such provision reflects the principle that 'who implements, who earns'. However, taking patents completed by university-enterprise collaboration as examples, enterprise has better conditions to implement independently than university, generally, there is supposed to be agreement signed by contract about independent implementation and implementation returns for both university and its cooperative enterprise; and disputes will be easily occurred if there is no agreement contrarily, and it consequentially involves issue of reasonable allocation for proceeds after the independent implementation. In order to strengthen the combination of production, teaching and research as well as mobilize the enthusiasm of universities to participate research and development, provisions concerned about the independent complementation of co-owners for the co-owned patent need to be redefined while the modification of the related law.

Secondly, the right of licensing implementation should also be laid emphasis on. Precisely, the Article 15 of China's Patent Law approved that each of co-owners is able to implement the general licensing independently, but the proceeds should belong to co-owners. Such specific provision also stipulates that the income belongs to people who have ability to implement independently, and other co-owners cannot enjoy the distribution of benefit. However, the income after the independent implementation throughout general licensing by the one who does not have the ability of independent implementation, can nevertheless be distributed by other co-owners. That is something controversial to demonstrate through critical argument.

2.3       Regulation to the right of disposition for the co-owned patent

In aspects of the right to transfer the co-owned patent, the China's Patent Law emphasis the principle of consensus on it. However, there is no right of first refusal for other co-owners and additional terms in case of inconsistent negotiation in such provision; as a result, the transformation of the co-owned patent is seriously affected in a negative way consequently. In fact, it is not as easy as imagined to achieve consensus, and the selection of assignee will influence other co-owners' proceeds in a certain extent, so it is important and necessary to provide other alternative approaches if negotiation fails.

In aspects of the right of pledge for the co-owned patent, there are specific provisions on such statute involved in China's Assurance Law, Patent Law and Property Law respectively. China's Assurance Law clearly defines that the intellectual property is able to be set as collateral pledge, and it also stipulates effectiveness of the pledge and form of establishment, resulting in providing legal protection for taking full advantage of intellectual property. Additionally, the China's Patent Law has specific provision about the right of pledge for co-owned patent, and the exertion of such right needs the consent of all co-owners. However, China's Property Law just stipulates issue about the right of pledge for patent right and there is no statement about the exertion of the pledge for the co-owned patent. In recognition of setting pledge for patent, during the validity period for the settled patent of pledge, pledgor should award the consent of the pledgee if he is supposed to implement the right of licensing to use and transferring; If the pledgee allows pledgor to license or transfer, the revenue should be used for prepaying the debt to pledge, and even withdrawing.

In terms of the abandonment about the right of application and disposition for the co-owned patent, related provision in China's current law and legal regulation does not interfere the issue of abandoning the right of application and disposition for the patent by co-owners. While concerning about the issue of abandonment to the right of application for patent, the Article 340 Paragraph 2 of the China's Contract Law stipulates that, for the collaborative research and development projects, if anyone of the co-developers is not supposed to participate the application for the co-owned patent, other partners of the collaborative project are allowed to apply independently; otherwise, for the development of inventions under collaboration, whether it successfully applied for the patent, partners that even did not participate the application for the patent, they are still able to independently make full use of the technological achievements or patented technology developed collaboratively [9]. In the meantime, China's Patent Law just stipulates on the right of patent disposition, that is, co-owners of the co-owned patent have to request the consent of other co-owners if they are supposed to abandon the quotient that belongs to them.

Therein lies the problem. Faced with the reality about the existence of the co-owners' abandonment for rights, whether it is available to registered, copying from the procedure of patent transferring? Once co-owners abandoned the right of application, what does the right belong to, other co-owners, the nation or in the public domain? China's Patent Law stipulates that the abandonment of right requests other co-owners' consent, but how to define the specific way or approach for abandonment as well as the consent by other co-owners? Such questions are not covered or stated as provisions in related law in China currently.

2.4       Obligation of maintenance and judicial protection for the co-owned patent

After patentee got the patent, they not only have rights to manufacture, sale, use and import, but also have obligation to maintain the patent right and there is no exception for all patentees of co-owned patent. In the obligation of maintenance, fees for maintaining patent should be paid, according to related regulations, if anyone of the co-owners does not pay, does it mean the abandonment of patent right? On the other hand, if someone indicates that the patent right is invalid, and legal validity needs to be maintained, if anyone of co-owners does not participate the maintenance, can it be considered as the abandonment of patent right? In accordance with two circumstances above, such obligation has equal validity for all co-owners [10]. In practice, the Article 15 Paragraph 2 of the China's Patent Law just stipulates that the maintenance of the co-owned patent requests the consent of other co-owners, which reflects requirement of the common obligation for co-owners of co-owned patent. Unfortunately, the current law and legal regulation do not make clear provisions about it, but such issue has mentioned in the latest draft for the Revision of China's Patent Law.

Another important issue that is necessary to concern about is the judicial protection for the co-owned patent. There are many factors lead to the difficulties for guaranteeing the protection in case of infringement. Firstly, related provision for the infringement of co-owned patent in China's Patent Law seems to be unreasonable, it stipulates that the litigation requests the consensus by all co-owners, which denied the right to take judicial proceedings independently by anyone of co-owners. Secondly, after the co-owned patent was infringed, that part of co-owners did not participate the litigation will affect the right relief. Thirdly, part of co-owners did not participate the litigation without abandoning their right, only enjoying the allocation of tort compensation after the success in protection without assuming the risk of litigation, and that may play a negative role in affecting the enthusiasm of initiative legal activist. On the face of it, solving these issues from the legislation is very necessary.

Throughout combing and analysis, it can be seen that, although there are some provisions are intimately bound up with the legal protection of co-owned patent in China's Patent Law, Contract Law and Property Law, they are still not enough to solve coming soon latest specific arisen issues. Therefore, Contract Law and Property should be harmonized with Patent Law based on legislative perspective; Unreasonable provisions about co-owned patent in Patent Law also need to be improved in due time; Some specific provisions that are not able to be addressed by Patent Law, like rules for the implementation of co-owned patent, can be clearly defined throughout specific implementing regulations of Patent Law, which seems to be as similar as rules for the exertion of co-owned property that should be reflected on the Property Law [11].

  1.         The improvement of Improvement to the Co-owned patent in China

As the right of co-owned patent exists objectively, appropriate system is supposed to be designed on such right in accordance with current law provisions.

3.1       Legislation on the right to apply for co-owned patent

In China, the right to apply for patent is intimately bound up with the patent right, only applicant is able to be the owner of the registered patent, as a result, provisions about the right to apply for the co-owned patent is so crucial. It can be seen that specific provisions concerned about the all inventors own the right to implement the application of patent in aspects of joint inventions in the China’s Paten Law are reasonable. However, if each one of co-owners has difficulties to participate in joint application in time due to objective excuses, relevant provision in American Patent Law can be cited as reference, which accepted the legitimacy of adding to participate by the one who was absence afterwards; Meanwhile, for the issue that non-co-inventors were added into the group of co-applicant, the nature of specific details should be identified and classified, which means some of them will be responsible for criminally responsibility if there is fraudulent intensions, and some of them will be removed by the Patent Office after the request by other co-owners if there is no fraudulent behaviors. As far as I am concerned, I personally consider that there should be a series of related provisions, which are supposed to have far-reaching applications in addressing issue of patent ownership disputes caused by commissioned inventions: Firstly, the right to implement the application of patent independently should be given to co-owners, while other co-inventors also must be added as co-applicants. Secondly, other co-owners should be given specific right of pre-emption for application of patent, on the basis of the transferring application of patent lawfully; meanwhile, the inconsistence on provisions about application of patent between the Patent Law and Contract Law needs technical processing timely. Thirdly, each one of co-owners should state the abandonment for application of patent with written statement, and other co-owners can implement the application of patent, however, the one who abandons the application of patent can still be free to implement throughout obtaining the patent by application afterwards.

3.2       The improvement of legislation for the right to implement the co-owned patent

In recognition of the right to independently implement the co-owned patent, China’s Patent Law stipulates that co-owners of the patent are able to implement and earn incomes independently. However, such provision for a few co-owners who are not able to implement independently or temporarily do not have capacity to implement independently, seems to be unfair obviously. One Chinese famous scholar, professor Zheng Chengsi had ever considered that the reasonableness of such provision is supposed to be interpreted in accordance with the object sharing of the intellectual property. And such provision exactly has a certain amount of reasonableness on the basis of the legislative objective that is to encourage and promote the practical application of patent [12]. As far as I am concerned, I personally consider that, firstly, the to implement the co-owned patent should be complied with the principle of agreement priority; secondly, each one of co-owners is able to implement independently if there is no agreement by anticipation, but any embodiments are requested to notify other co-owners, in order to protect other co-owners' right to know [13]; thirdly, in view of the principle of fairness, under the premise that the right to implement independently is permitted to be presence, co-owners who do not have capacity to implement independently should be permitted to enjoy the right of general licensing implementation.

In practice, in aspects of the exertion to the right of co-owned patent licensing implementation, there are still several controversial issues. Firstly, whether the co-owners enjoy the right of licensing implementation, in another word, whether one of co-owners, who exercises the right of licensing implementation, should be subjected consistently by other co-owners. Secondly, how to define and classify the specific content for the right of licensing implementation? Thirdly, could the co-owner who has already enjoyed the right to implement independently still enjoy the general right of licensing implementation? Fourthly, should the income earned from exercising the general right of licensing implementation be allocated among co-owners? Under such circumstance and concerned about questions above, China's Patent Law not only gave the general right of licensing implementation to co-owners, but also stipulated that incomes earned from the licensing implementation should be allocated among co-owners.

For such controversial question whether each one of co-owners can enjoy the right of licensing implementation, other countries beside China stipulate specific preconditions that they should be agreed by other co-owners. And throughout objective analysis, the reason could be concluded that licensing implementation is likely to influence the exercising effect for the right of independent implementation, more precisely, it may increase the number of competitors to the one of co-owners who implemented independently, or it may reduce the market share of the patented products. That is to say, it seems to be almost impossible to obtain the consent of licensing implementation by other co-owners. Thus, it must inevitably ignore the proceeds of co-owners who do not have capacity to implement independently, and it is unfair obviously [14]. By contrast, therefore, China's Patent Law gives general right of licensing implementation to each of co-owners is comparatively reasonable and appropriate.

In recognition of the allocation for the charges of general licensing, there are three types of existing proposals as following: firstly, co-owners who exercise the general right of licensing implementation should give reasonable compensation to other co-owners, referring to the related French Patent Act as a reference; secondly, co-owners who exercised licensing implementation are permitted to obtain the proceeds exclusively, in accordance with the existing program for co-owners in China, which is 'once implemented independently, then enjoys proceeds exclusively'; thirdly, on the basis of specific provisions in China's Patent Law, the proceeds are supposed to be allocated among co-owners. As far as I am concerned, I personally recommend that existing provisions need modification in certain extent, which had better be consistent with specific regulation of 'once implemented independently, then enjoys proceeds exclusively', which means to permit the co-owners who exercise licensing implementation to use the proceeds. If provisions can be modified like what I mentioned above, it seems to not only promote the full application of the patented technology, but also guarantee the empirical fairness to co-owners without capacity to implement independently as well as avoid disputes caused by the distribution of incomes.

On the issue whether each one of co-owners is able to exercise licensing implementation exclusively, related provisions in the China's Property Law can be withdrawn, ‘if each one of co-owners is supposed to dispose the co-owned immovable property or movable property as well as make major repairs for the co-owned immovable property or movable property, the one should be subjected to the consent by all co-owners or several co-owners whose shares are more than two-thirds, excluding if co-owners have agreed otherwise’ [15]. As far as I am concerned, I personally consider that such provision had better be stipulated more niche targeting on the basis of practical experiences, more precisely, the one of co-owners who exercises the right should be subjected to the consent by majority of co-owners, and he or she also needs to notify other co-owners the licensing time, scope, cost and so on, then the licensing revenue should be allocated among co-owners properly. Meanwhile, concerning about the exclusive licensing mode, it does not influence independent implementation by co-owners, but other co-owners' general right of licensing implementation will be cancelled, so that is why it is so important and necessary to be subjected to the consent by majority of co-owners.

In terms of exclusive licensing others to implement co-owned patent, it almost has the similar effects with the patent transferring, except for the consequence that co-owners do not lose patent right. Therefore, any one of co-owners once intended to implement exclusive licensing to use, he or she should be subjected to the consent by all co-owners consistently, or in another word, the right to implement exclusive licensing should be done under joint implementation. And the charges for using the exclusive licensing also should be allocated among co-owners properly.

3.3       The legislative improvement for the disposition right of co-owned patent share

In aspects of the disposition right of co-owned patent, it mainly represents the transfer of right on holding shares by co-owners. Firstly, China's Patent Law stipulated that the disposition right of co-owned patent should be subjected to the consent of all co-owners consistently. However, as far as I am concerned, I personally consider that such provision seems to be comparatively inappropriate especially in practice. More precisely, on one hand, the disposition right of co-owned patent does not influence the profits and proceeds of other co-owners, the endorser who is supposed to transfer right, only needs to register with transferring agreement of co-owned patent at the State Patent Office in China; on the other hand, the majority of assignee is very familiar with co-owned patent and has capacity to implement independently, and that definitely plays dominant role in promoting the application of patent. The possibility of successful transferring is supposed to be reduced inevitably if there is a compulsory requirement to obtain other co-owners' licensing. Recently, patent law in France and Spain authorized any co-owners are able to implement transferring right without obtaining the consent of other co-owners, and that is worth being cited as reference for the improvement of China's Patent Law. Secondly, in recognition of independent implementation of transferring right by co-owners, in the meantime, other co-owners are able to enjoy the pre-emptive right in a certain period of time, according to related provision [16]. And the settlement for the deadline could be calculated from the date of noticing co-owners in advance, which is cited from related provisions in French and Spanish Paten Law.

In recognition of the abandonment for the share co-owned patent right, the Article 15 of the China's Patent Law stipulates that any co-owners of the patent should obtain the consent of other co-owners before abandoning their shares [17]. However, there is no provision about the ascription for abandoned shares. I personally recommend that, firstly, the abandonment of co-owned patent right by co-owners should be legally recognized and there is no need to obtain the consent by other co-owners; secondly, some scholars considered that abandoned shares should belong to the state in accordance with the theory of co-ownership right, but I personally consider that is adverse to promote the application of co-owned patent, and the abandoned share of co-owned patent should belong to other co-owners throughout utilizing legislative experiences from France, and those shares will take effect after registration in patent authorities [18]; thirdly, because there is no specific provisions about the ascription of abandoned shares of co-owned patent in both China's Property Law and Patent Law, related provisions in Japan's Civil Code is able to be cited and utilized to modify related provisions for the improvement, such as the abandoned shares by share-owners should belong to other co-owners [19]; fourthly, any co-owners who have already abandoned the right to apply for the patent, can still implement the patent without being recognized as infringement after the patent is approved.

3.4       The legislative improvement of maintenance and judicial protection for the co-owned patent right

In recognition of the theory of relationship between rights and obligations, any co-owners should take responsibility of maintaining obligations while enjoying the patent right. As a result, if any co-owners do not pay annual fee for the patent and do not participate right-safeguarding activities, it seems to be appropriate that other co-owners who paid on account or fulfilled obligations on behalf, had better to urge those co-owners, except for the fact that those co-owners renounced they are supposed to abandon the patent right. Additionally, because the profits or proceeds of each co-owners are quite different in certain extent of closeness, and co-owners who exercise the right of independent implementation and licensing implementation are intimately bound up with the co-owned patent, once they lost the patent right, they would lost their temporary profits or proceeds, so it is undeniable that they always concern more about maintaining the patent right. By contrast, being a general co-owner without intensions to exercise specific right, some co-owners may have fewer interests on co-owned patent. Therefore, for those co-owners who did not fulfill maintaining obligations or did not take the initiative to maintain obligations, they should not recognized as abandoning patent right. And for those co-owners who did not participate in responding to the activities of patent invalidation, they are supposed to be deemed to reduce proceeds or abandon proceeds impliedly rather than abandon their co-owned patent right.

For the infringement of co-owned patent, whether related patent law in China should stipulate that prosecution should be done jointly by all co-owners, or permit independent prosecution by each co-owner is still controversial, and whether the co-owner who did not participate the litigation, can award the proceeds from litigation needs to be stipulated specifically. As far as I am concerned, I personally consider that, firstly, related provisions should determined that prosecution by any co-owners is validity, and it seems to be inappropriate that prosecution by all co-owners is validity, in one word, co-owners should be endued with right to prosecute independently; secondly, co-owners who participated litigation should notify other co-owners to participate maintaining the right, while costs and proceeds of the litigation should be distributed reasonably among co-owners; thirdly, for co-owners who have already received the notice and memorably stated not participating the litigation for maintaining right, they will be recognized as abandoning litigation right as well as not awarding proceeds from litigation perceptibly [20]; last but not the least, for co-owners who did not participate joint litigation due to excused absence like out of touch, they can participate the distribution of tort compensation if they agreed to afford part of the cost of litigation afterwards, but the proceeds from the compensation should deduct relevant fees for participating the litigation by co-owners [21].

Conclusion

Compared with system of the co-ownership, there is still a multitude of details and objects need to be improved and stipulated specifically. However, areas that need to be improved are not as same as legal loophole, as the improvement of law always goes behind the constantly developing reality, in order to achieve the fundamental principle of honesty, credibility, fairness and justice better, the improvement of the co-owned patent system in China need to be stipulated more specifically, and much more detailed provision also should be added into the current China’s Patent Law. Furthermore, there is another reasonable and appropriate approach to supplement and improve the co-owned patent system, which is the judicial interpretation from the Supreme People's Court in China, in practice, it is non-statutory law, but it has the lawful authorization from Standing Committee of the National People's Congress, which means what judicial interpretation it made has lawful binding effect, and the process to make judicial interpretation is a kind of way to implement right of the Judge-Made Law.

 

References:

 

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