刘明江

内容提要：在当然许可专利侵权诉讼中，若侵权人承诺接受专利权人在当然许可声明中明确的许可条件，则不得对侵权人颁发禁令，但不妨碍专利权人要求侵权人承担损害赔偿责任，且损害赔偿数额不应超过侵权行为发生之初侵权人依照许可条件应当支付给专利权人的许可使用费的两倍。为了促进专利有效实施，我国专利法拟引入当然许可制度，但与英国、南非等国家的立法规定相比，草拟的有关条款在专利侵权救济方面尚有完善的空间，例如，一概禁止专利权人申请诉前临时禁令，有合理理由担忧专利权人会遭受不可挽回的损失，导致利益的天平朝侵权人倾斜。

关 键 词：当然许可   专利侵权   救济   临时禁令   损害赔偿

Abstract: In the proceedings for infringement of a patent under the license of right, no injunction shall be granted against the infringer who undertakes to take a license on the terms determined in the declaration of license of right by the owner of the patent, however, it constitutes no hindrance for the patent owner to request the infringer to take the liability for damages, and the amount of the damages shall not exceed double the amount which would have been payable by the infringer as licensee if such a license on those terms had been granted before the earliest infringement. To put patents to efficient exploitation, the institution of license of right is scheduled to be introduced into China’s patent law, but nonetheless, in contrast to the legislative provisions in the countries such as the United Kingdom and South Africa, there is still room for improvement for the drafted provisions with regard to the remedies for patent infringement, e.g., a patent owner is not allowed to apply for an interim injunction before filing an action without exceptions, with reasonable grounds to worry that the patent owner might suffer an irreparable loss, causing the balance of interests to tip more in favor of infringers.

Key Words: license of right; patent infringement; remedy; interim injunction; damages