关键词: 专利维持, 年费制度, 结构要素

Abstract: Defining the structural elements of China’s patent maintenance annual fee system and its functions are the basis for optimizing the annual fee mechanism of patent maintenance. This paper first analyzes the role of the theory of China’s patent maintenance annual fee system and its structural elements, and then under the cooperation of a number of institutions such as the Electronic Intellectual Property Center of the Ministry of Industry and Information Technology of the People's Republic China, the Intellectual Property Protection Association in Beijing, the China Intellectual Property Magazine, the Chongqing Municipal Intellectual Property Office, and the Xiamen Municipal Intellectual Property Office, investigate the issue of annual fees of patent maintenance for innovative entities such as Huawei Technologies Co., Ltd., Zhongxing Telecommunication Equipment Corporation, BOE Technology Group Co., Ltd., Feitian integrity Technology Co., Ltd., Hanwang Technology Co., Ltd., Huaqin Communication Technology Co., Ltd., Jinshan Software Co., Ltd., Leshi Holdings (Beijing) Co., Ltd., OP Lighting Co., Ltd., Qihoo 360 Technology Co., Ltd., Xinshida Electric Co., Ltd., China Guangdong Nuclear Power Engineering Co., Ltd., China Mobile Communications Group Co., Ltd., GREE Electric Co., Ltd. and more than other 200 companies from Beijing, Shanghai, Guangdong, Chongqing, Fujian, Jiangsu, Hubei, Shandong, and Sichuan, etc. 14 provinces or municipalities for the current China’s patent maintenance annual fee system in China. The questionnaire was distributed in two ways: paper questionnaire and electronic questionnaire. A total of 204 questionnaires were collected, of which 50 paper questionnaires were distributed, 38 were effectively recovered, and the recovery rate was 76%. 176 copies of effective electronic questionnaires ware recycled. Based on this survey information, the database that the opinions and feelings of innovation subjects on China’s patent maintenance annual fee system was constructed.   Comprehensive analysis of the theory of China’s patent maintenance annual fee system and the roles of its structural elements and the results of questionnaire surveys of domestic patentee on their views or preferences about them found: Firstly, the main purpose of China’s patent maintenance annual fee system are to stimulate the technological innovation and improve the patent efficiency by optimizing the patent income, and support the financial operation of the patent office by increasing the funding of the patent office. Secondly, the difficulty of the patentee in deciding whether to pay the annual fee of patent maintenance is related to the amount of patent income and its own economic ability, and the reasons for terminating a patent without paying an annual fee are nothing more than patent benefits and patent costs, and other patent management systems. In other words, the difficulty in determining the annual fee is mainly due to the difficulty in determining the patent income based on the cost-benefit theory. Thirdly, although the survey results show that most rights holders agree with the unitary system, according to the nature of the annual fee of patent maintenance and the role of the claim number, this paper suggests that the annual fee structure of patent maintenance in China should adopt a mixed system. In other words, the “mixed system” of the annual fee structure of patent maintenance is better than “unitary system” based on the stimulate innovation. Forth, the “pay annual fee once” model is better than “pay an annual fee every few years” mode based on the flexibility, the “year-to-year growth of annual fee” model is more conducive to the risk of patentee avoiding “multiple annual fees” than the “increasing annual fee by 3 or 5 years” model based on the uncertainty of patent income, and there is a difference in the support degree for the above opinions. Fifth, optimizing the annual fee amount of patent maintenance is a key step in reforming China’s patent maintenance annual fee system in China. Most holders of patentee hope that the number of annual fees of patent maintenance will be significantly reduced, slightly reduced, maintained unchanged, and slightly increased to a substantial increase in different stages.According to the theory of the institutional elements of China’s patent maintenance annual fee system and the results of the investigation of the patentee, in order to effectively play the role of China’s patent maintenance annual fee system in China to promote innovation, it is recommended to re-examine China’s patent maintenance annual fee system in China and its charging standards, and comprehensive reforms and proposed the following specific recommendations. The first is to strengthen the theoretical study of China’s patent maintenance annual fee system, systematically analyze its internal structural elements and its synergistic mechanism to promote innovation. The second is to change the growth model of the annual fee of patent maintenance: it is recommended to increase the annual fee for patents every five years to increase a large gradient, while the annual fee of patent maintenance increases slightly during each five-year period. The third is to adjust the growth rate of the annual fee of patent maintenance: significantly reduce the annual fee of patent maintenance for the first 5 years from the application date; significantly reduce the annual fee of patent maintenance for the first 6-10 years from the application date; keep it unchanged from the date of application to the 11-15 year for the annual fee of patent maintenance; increase the annual fee of patent maintenance for the first 16-20 years from the filing date. The fourth is to provide a choice of payment models: 1) A one-time payment of all annual fee of patent maintenance for 20 years, the annual fee can enjoy a 40% discount; 2) If you pay all annual fee of patent maintenance four times in 5, 10, 15 and 20 years from the filing date, you can enjoy a 7-8% discount on the annual fee; 3) If the annual fee of patent maintenance is paid in every year, the annual fee must be paid in full. The fifth is to adjust the annual fee structure of patent maintenance: in addition to the payment of the basic annual fee of patent maintenance, a certain percentage of the fee is charged according to the number of patent claims. The sixth is to optimize the payment method of the annual fee of patent maintenance, set up a special account, and allow the use of deductions, etc.

Key words: patent maintenance, annual fee system, structural elements