专利共有——交易与许可的经济分析

作为一种法律上允许的企业垄断或日联合行为．专利共有的制度安排应当是立法对现实经济中个体在制度需求上的确认。但运用经济分析中常见的交易成本、博弈论等分析有关现行规定后不难发现．我国的专利共有制度安排在一定情形下反而增加了合作研发的交易成本．并有导致共有人竞相发放许可的倾向，以致许可利益被稀释、压低至边际成本。因此，完善共有专利许可及其费用分配的规则势在必行．以降低交易成本、促进资源有效配置和经济效益最大化；同时，让各专利共有人必须在一定的许可协议下才能对外许可．以避免公地悲剧的可能。

Patent Co-ownership--Economic Analysis on Transaction and License

As a legally allowed monopoly or joint action, the system of patent co-ownership should be a kind of leg- islative confirmation on the individual needs existing in our practical economy. But reviewed by the commonly used economic analytical means such as transaction cost and game theory, our patent co-ownership arrangements are surprisingly found under circumstances that it brings out a burden to the transaction cost of co-development, and that it may dilute the owner＇s interests or even comer the interests to marginal cost due to the tendency of abused license by its co-owners. Therefore, it is necessary to make further study and improvement on patent li- cense and profit distribution arrangement to lower down the transaction cost, and to reach the target of effective source distribution and profit maximization. Meanwhile, it is necessary to limit the patent license among the co-owners under a certain agreement to avoid the tendency of tragedy of commons.