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| How Can Patent Protection Stimulate Innovation Precisely：Starting from the Policy Lever Theory in American Patent Law |
| Zhang Erhan |
| (Law School，Nanjing University，Nanjing 210009，China) |
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Abstract With the rapid development of science and technology, the industries involved in the invention and creation of patent protection are becoming increasingly complex, which poses a severe challenge to the patent system. There are significant differences in the innovation characteristics of different industries. How can a unified patent system accurately stimulate the innovation of different industries? Is it necessary to formulate an industry-specific patent system? To solve these problems, American scholars put forward the policy lever theory which has aroused wide attention. However Chinese scholars pay insufficient attention to this important theory. At present, China is changing from a big country that introduces intellectual property rights to the one that creates intellectual property rights, and intellectual property work is changing from pursuing quantity to improving quality. The number of patent disputes involving strategic emerging industries accepted by the court is increasing. In this context, it has become a practical problem for China of how to accurately stimulate the innovation of different industries.#br# This paper makes a comprehensive investigation on the policy lever theory in the U.S. patent law. American scholars Professor Samuelson and Professor Scotchmer put forward the concept of policy lever in the field of intellectual property for the first time to refer to the institutional design in the intellectual property system that can be sensitive to the industrial background and technical field and adjust the innovation incentive mechanism of different industries, so as to avoid giving innovators too much or too little reward. After that, Professor Burk and Professor Lemley specifically analyzed the policy levers existing in the U.S. patent law, including the utility doctrine, the PHOSITA standard, the pioneering patent rule, the reverse doctrine of equivalents and many other judicially created rules that can be applied specifically to the industry. These rules give the court a reasonable limit of discretion, which belong to the judicial policy levers in nature. Although the implementation of patent policy lever faces many doubts about the feasibility and effectiveness, it is an objective fact that the judicial application of patent system is specific to the technology industry. The data of American judicial practice show that the court adjusts the incentive mechanism of different industries through the flexible application of judicial policy levers to avoid insufficient or excessive incentives.#br# Taking the policy lever theory as the analysis tool, this paper analyzes the current patent system in China, and finds that there are judicial policy levers and statutory policy levers. These policy levers provide a way for court to accurately stimulate the innovation of different industries in patent infringement disputes. The application of statutory policy levers is definite because of industry specific circumstances stipulated clearly in the law. However, the application of judicial policy lever is uncertain. As a country with statute law, the application of law should pursue not only social effect, but also certainty and predictability. Therefore, the implementation of judicial policy levers should be based on law, and the discretion of judges should be limited to the minimum range in which can meet the goal can be met. To achieve that, this paper advocates a reasonable legalization path to legalize the judicial policy levers.#br# Patent law is a law to protect and encourage innovation. However, insufficient and excessive incentives for invention and creation will have adverse consequences. The policy lever theory provides an effective analysis tool for decision-makers to formulate and implement policies to accurately stimulate innovation. Chinese scholars have also found that the application of patent system is different in different industries, and some academic papers have pointed out that some rules have the attribute of policy lever in China patent system. On this basis, the research results of this article are of great significance in the following three aspects. Firstly, this paper comprehensively discusses the policy lever theory, not only analyzes the functional value of policy lever in patent law, but also points out the possible problems in the implementation of policy lever in patent law. Secondly, using the policy lever theory as the analysis tool, this paper analyzes the patent system in China, and points out the rules that can be applied specifically to the industry. Finally, it puts forward specific countermeasures and suggestions on how to give full play to the function of the judicial policy levers. The research results fill the gap related to the patent policy lever theory in China, and have practical significance for stimulating innovation in different industries precisely.#br#
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Received: 26 September 2021
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