专利共有制度的博弈分析

何怀文，陈如文*

【摘要】我国专利共有制度独具中国特色，既不同于德、法、英、美等国的专利共有制度，同时也扬弃了我国传统民事共有关系。系统的博弈分析证明，不同的专利共有制度安排对激励专利发明商业化的作用有所不同。优选的制度安排包括：准许共有人单方面实施共有专利并独享收益；准许共有人单方面发放普通许可证并要求许可收益由全体共有人均分；准许共有人单方面转让其全部共有份额，但禁止转让其部分共有份额，除非全体共有人同意。所以，相比之下，中国特色专利共有制度比他国的更具优越性，能更为有效地促进共有专利发明的商业化。

【关键词】专利共有；博弈分析；专利发明商业化；按份共有；优先购买权

Co-Ownership of Patents: The Chinese Characteristic Approach and
Its Positive Effect on Commercialization
He Huaiwen, Chen Ruwen

Abstract: While patents are usually jointly owned, the rules governing co-ownership of patents are divergent among main countries, such as Germany, France, United Kingdom and United States. The newly amended Chinese patent law takes yet a Chinese characteristic approach. Through the lens of game theory, rules in these countries do not play the same in terms of furthering the commercialization of the patented invention. The better choices of the rules include: (1) A joint owner should be permitted to use the patented invention unilaterally and enjoy the resultant profits; (2) A joint owner should be allowed to license a third party non-exclusively but the licensing income should be required to be divided among all the owners; (3) A joint owner may transfer his share in whole, and there is no need to provide the other owners with a right of preemption. However, he must not subdivide his share and transferred the subdivided share unless approved by the other owners. Therefore, it is evident that the Chinese approach has a particular strong effect on promoting commercialization of inventions jointly owned.

Keywords: Co-ownership of Patents; Game Theory; Commercialization of Patented Invention; Part Ownership; Right of Preemption

专利共有制度的博弈分析.pdf