专利权权利性质研究
发布时间：2018-07-18 08:34
【摘要】：对于专利权的权利性质,学界一般以TRIPs协议的规定,认为其具有私权权利属性。由于上述主流观点在国内外得以流行,使得专利权在最初起源时的权利性质被掩盖。纵观专利权的历史演变过程,可知专利权起源于威尼斯,被确立为一种近现代产产权制度是在英国,英国《垄断法规》的出台是专利制度的一个里程碑,该法明确规定专利权是以垄断“特权”的性质存在。美国独立建国后,仍然沿袭英国“特权”的方式来授予发明人专利权,1790年美国第一部《专利法》的出台,基本形成了“美国式”的专利制度,其对专利权的获得方式、权限范围、以及时空性进行了详细规定。该法确立了科学严格的专利审查授予模式,认为其是发明人可以直接依法获得的财产性权利,不在认为专利权拥有绝对的垄断权属性。至此,专利权的私权属性开始凸显。1995年乌拉圭回合谈判后,TRIPs协议出台,彻底摒弃了专利权原有的垄断“特权”性质,将其直接规定为私权的权利性质。虽然TRIPs协议出台后至今,世界各国基本上认可了专利权的私权性,然而学界一直对TRIPs协议的规定存有广泛争议,涉及专利法的主体、客体内容等诸多层面。因此将专利权界定为私权,不但没有合理的理论根基,而且也不切合真实的制度发展史。专利制度具有增进财富的目标,本质上体现了工具性权利的特性。现代专利权是基于政府的行政确认和授权来获得,并且赋予专利权人在一定的时空范围内可以自由转让和销售。由此可知,虽然专利权具有垄断特权的性质,但随各国社会结构的变化,单纯的强调专利权的垄断特权性质已不在符合专利权目前的发展现状。工具论的理论观点强调专利制度应该更多的关注如何解决财产以及财产的行为方面,并不鼓励对财产本身的深层结构进行剖析,认为专利权只是一种财产机制。所以应该回归专利权最初起源的权利性质,认为其是一种特权,是具有垄断性和私权性双重属性的工具性权利。又因专利制度也有让社会民众接触已经获得专利的工业知识,来促进本国经济技术发展的公共性目标,以及各国社会结构的变化,对于专利权的权利属性应当在垄断性特权权利性质和私权权利性质属性之间寻求平衡,单纯的强调其中之一都不能完全反映专利权目前的现状和发展趋势。
[Abstract]:As to the nature of patent rights, scholars generally regard trips as private rights. Due to the popularity of the above-mentioned views at home and abroad, the nature of patent rights in the initial origin is masked. From the historical evolution of patent right, it can be seen that patent originated in Venice and was established as a modern property right system in England. The introduction of British monopoly law is a milestone of patent system. The Act clearly stipulates that patent rights exist in the nature of monopoly "privilege". After the independence of the United States, the United States still granted the inventors the patent right in the way of "privilege" in Britain. With the publication of the first United States Patent Law in 1790, a "American-style" patent system was basically formed, and the way in which the patent right was obtained was basically formed. The scope of authority, as well as the space-time nature of the detailed provisions. The law establishes a scientific and strict mode of patent examination and grant, which is regarded as a property right which the inventor can obtain directly according to the law, and does not hold the absolute monopoly right attribute of patent right. After the Uruguay Round of negotiations in 1995, the trips Agreement came into being, which completely abandoned the monopoly "privilege" nature of patent right and directly stipulated it as the right nature of private right. Although the trips Agreement has been adopted since the publication of the trips Agreement, countries in the world have basically recognized the private rights of patent rights. However, the academic circles have always had extensive disputes on the provisions of trips Agreement, involving the subject and object content of patent law and so on. Therefore, the definition of patent right as private right is not only without reasonable theoretical foundation, but also with the true history of system development. Patent system has the goal of increasing wealth and embodies the characteristics of instrumental rights. Modern patent right is obtained on the basis of the government's administrative confirmation and authorization, and the patentee can be freely transferred and sold in a certain time and space. It can be seen that, although patent has the nature of monopoly privilege, but with the change of social structure in various countries, it is no longer in line with the current development situation of patent right to emphasize the monopoly privilege nature of patent right. The theory of instrumentalism emphasizes that the patent system should pay more attention to how to solve the property and the behavior of the property, and does not encourage the analysis of the deep structure of the property itself, and thinks that the patent right is only a kind of property mechanism. Therefore, it is necessary to return to the nature of the original origin of patent right as a privilege and an instrumental right with the dual attributes of monopoly and private right. And because the patent system also gives the public access to the industrial knowledge that has been patented, to promote the public goal of the economic and technological development of our country, as well as the changes in the social structure of various countries. The property of patent right should be balanced between the nature of monopoly privilege and private right, and no one of them can completely reflect the current situation and development trend of patent right.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
本文编号：2131346
[Abstract]:As to the nature of patent rights, scholars generally regard trips as private rights. Due to the popularity of the above-mentioned views at home and abroad, the nature of patent rights in the initial origin is masked. From the historical evolution of patent right, it can be seen that patent originated in Venice and was established as a modern property right system in England. The introduction of British monopoly law is a milestone of patent system. The Act clearly stipulates that patent rights exist in the nature of monopoly "privilege". After the independence of the United States, the United States still granted the inventors the patent right in the way of "privilege" in Britain. With the publication of the first United States Patent Law in 1790, a "American-style" patent system was basically formed, and the way in which the patent right was obtained was basically formed. The scope of authority, as well as the space-time nature of the detailed provisions. The law establishes a scientific and strict mode of patent examination and grant, which is regarded as a property right which the inventor can obtain directly according to the law, and does not hold the absolute monopoly right attribute of patent right. After the Uruguay Round of negotiations in 1995, the trips Agreement came into being, which completely abandoned the monopoly "privilege" nature of patent right and directly stipulated it as the right nature of private right. Although the trips Agreement has been adopted since the publication of the trips Agreement, countries in the world have basically recognized the private rights of patent rights. However, the academic circles have always had extensive disputes on the provisions of trips Agreement, involving the subject and object content of patent law and so on. Therefore, the definition of patent right as private right is not only without reasonable theoretical foundation, but also with the true history of system development. Patent system has the goal of increasing wealth and embodies the characteristics of instrumental rights. Modern patent right is obtained on the basis of the government's administrative confirmation and authorization, and the patentee can be freely transferred and sold in a certain time and space. It can be seen that, although patent has the nature of monopoly privilege, but with the change of social structure in various countries, it is no longer in line with the current development situation of patent right to emphasize the monopoly privilege nature of patent right. The theory of instrumentalism emphasizes that the patent system should pay more attention to how to solve the property and the behavior of the property, and does not encourage the analysis of the deep structure of the property itself, and thinks that the patent right is only a kind of property mechanism. Therefore, it is necessary to return to the nature of the original origin of patent right as a privilege and an instrumental right with the dual attributes of monopoly and private right. And because the patent system also gives the public access to the industrial knowledge that has been patented, to promote the public goal of the economic and technological development of our country, as well as the changes in the social structure of various countries. The property of patent right should be balanced between the nature of monopoly privilege and private right, and no one of them can completely reflect the current situation and development trend of patent right.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
【参考文献】
相关期刊论文 前3条
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3 李玉剑,宣国良;专利联盟反垄断规制的比较研究[J];知识产权;2004年05期
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