First of all, the weak protection of intellectual property rights is the core problem that affects the transformation and application of restrictive measures. Poor protection of intellectual property rights seriously reduces the expectation of innovation income, thus reducing innovation investment and the introduction of advanced technology. The current laws and regulations lack punitive provisions. The patent law stipulates that the compensation for patent infringement should be leveled, and the draft transformation law also stipulates that the transformation of false deception should be leveled, which is ineffective in protecting the right holder. The low standard of compensation for actual infringement of intellectual property rights seriously affects the enthusiasm of scientific and technological achievements for transformation and innovation. According to statistics, the average actual compensation for patent infringement in China is only 80,000 yuan, the trademark is only 70,000 yuan, and the copyright is only 6.5438+0.5 million yuan, which is far below the standards of some developed countries.
Although China has established a legal system of intellectual property rights consistent with the world, there is still a lack of uniform standards for judicial protection of intellectual property rights. Significant progress has been made in the pilot construction of intellectual property courts in Beijing, Shanghai and Guangzhou, but problems such as the inconsistency between trial standards and compensation standards for intellectual property infringement cases remain unresolved. At the same time, China still lacks high-quality professional intellectual property judges, administrative law enforcement lacks investigation means and legal punishment means, and the connection between administration and justice is not enough.
Second, the contradiction between supply and demand is the fundamental problem that affects the transformation and application of constraints. Scientific and technological achievements cannot be effectively transformed and intellectual property rights cannot be effectively utilized. The important reason lies in the serious contradiction between supply and demand, which is the fundamental problem. Universities and scientific research institutions lack original innovation ability, and the supply of major scientific and technological achievements and core intellectual property rights is insufficient to meet the needs of enterprises. The innovation ability of enterprises is not strong, and the demand for scientific and technological achievements and intellectual property rights is insufficient. But the main problem is that the supply of scientific and technological achievements and intellectual property rights can not meet the market demand. Many scientific and technological achievements and intellectual property rights are the products of national strategies, plans, projects, plans and even instructions from leaders.
Market demand is the fundamental driving force for the transformation of scientific and technological achievements and the application of intellectual property rights. Any transformation of scientific and technological achievements must identify the market demand and meet the effective demand. In fact, many existing scientific and technological achievements are transformed through cooperation or entrusting R&D contracts. For example, 85% of R&D funds of Hof Institute in Flawn come from enterprises, and demand-oriented transformation of scientific and technological achievements is the main transformation method.
Third, the lack of effective transformation application mode is a prominent problem that affects and restricts transformation application. Organizational team and ability are important conditions to promote the transformation and application. The scientific research institutions of Chinese universities have not established a technology transfer office with unified functions of intellectual property management, technology transfer and investment as in developed countries. The dispersion of intellectual property rights is a prominent problem that restricts the application of transformation. Some foreign patent pools or patent portfolio operating enterprises based on technical standards provide enterprises with a package of licensing agreements, which greatly improve the efficiency of transformation and application, but there are no patent pools or patent portfolio licensing enterprises in China. Industry-University-Research's cooperation is an important way to transform and apply intellectual property rights, but China's innovation alliance and technology alliance have not fundamentally solved the organic combination of intellectual property rights, especially the patent pool or patent portfolio licensing, enjoyment and income distribution. The asymmetry of information and risk is an objective problem that restricts the application of transformation, but most of China's science and technology intermediaries are simple third-party models, lacking the means and ability to effectively solve the asymmetry of information and risk. The difficulty of starting a business is the main bottleneck restricting the efficiency of transformation. International experience has proved that the best way to transform intellectual property rights is investment. However, most transformation institutions in China lack investment function, investment funds are separated from transformation institutions, and existing laws and policies lack support for scientific and technological achievements and intellectual property entrepreneurship.
Fourthly, the lack of a reasonable benefit distribution system is the key problem that affects the application of restrictive transformation. To promote the transformation of scientific and technological achievements and the application of intellectual property rights, it is necessary to effectively encourage job inventors and their units. The income distribution policy of scientific research institutions in foreign universities takes into account the enthusiasm of all parties, and the post inventor can basically get about 1/3 after deducting the cost. However, the existing laws and regulations in China adhere to the principle of contract priority, fail to give consideration to the interests of all parties, and do not stipulate the upper limit of awards, which leads to a high proportion of awards to inventors in some units and places, and even as high as 95% in some places, which affects the enthusiasm of units to transform scientific and technological achievements and is not conducive to organizational transformation and application, talent team and capacity building. The reward and remuneration of the post inventor is actually the loss of state-owned assets. Although some laws allow it, it is not in line with the original intention of state-owned assets management. The fundamental reason is that there is no system of service invention right based on the position and actual contribution of the service inventor.
Fifth, the imperfection of laws and policies is an important problem that restricts the application of transformation. There are some shortcomings in the operability of the relevant laws on the application of transformation in China, such as more principles and superior provisions, lack of implementation rules, wide use of policy language, and lack of restrictions and normative provisions. There are overlaps and conflicts between science and technology law and intellectual property law, with different concepts, inconsistent right to dispose of intellectual property rights and inconsistent proportion of rewards for job achievements. China lacks an effective policy system to promote transformation and application, and the financial investment policy to promote transformation and application in a pure way will distort the market. The policy of allowing intellectual property fees to be included in the funds of scientific research projects is also not conducive to the transformation and application of institutions, teams and capacity building of scientific research institutions in colleges and universities. The value-added tax rate of strategic emerging industries, high-tech industries and intellectual property services is actually higher than the previous business tax rate. The business tax threshold of technology transfer income of scientific research institutions in colleges and universities is too low, and the one-time personal income tax burden of non-post achievements is too high. Lack of insurance and reinsurance policies to support conversion and application. 20 1 1 After the government procurement policy of independent innovation was abandoned, the most important demand-side innovation policy was in trouble. Taking intellectual property rights as state-owned assets requires maintaining and increasing value, while ignoring its maintenance cost and value timeliness. There are many institutional obstacles in the value evaluation and shareholding in the state-owned assets management system. Simplified scientific and technological evaluation-oriented mechanism leads to a large number of low-quality intellectual property rights. National science and technology plans often take the quantity of intellectual property rights as the acceptance index, and the quantity of scientific papers and intellectual property rights become the main indicators for the promotion and evaluation of scientific researchers' titles.
It is necessary to carry out a comprehensive reform to transform and utilize this system and mechanism.
First, improve the legal system of science and technology from a systematic perspective. To systematically amend relevant laws, there should be no overlap, repetition and conflict between legal provisions. The law should adhere to the principle of market decision, stipulate the transformation and application mode oriented by market demand, and guide development. To stipulate the responsibilities and obligations of the government, universities, scientific research institutions and state-owned enterprises for transformation and utilization. Improve legal norms, strengthen legal norms and binding functions, increase procedural provisions and punitive provisions, especially increase penalties for false transfer and transformation. Formulate detailed rules for the implementation of the law in a timely manner, focusing on solving outstanding problems that restrict the transformation of scientific and technological achievements and the use of intellectual property rights that have not been solved by the law.
The second is to build and improve the policy system to promote transformation and application. System design promotes the transformation and application of investment policy, mainly through improving the support methods such as interest discount and late purchase of scientific and technological achievements. We should consciously purchase a number of key core technologies of domestic and foreign industries and promote their application. Implement a low VAT rate for strategic emerging industries and R&D creative service industries, and raise the tax threshold for technology transfer income of scientific research institutions in colleges and universities. Formulate incentive policies for the transformation of non-service inventors. Take the procurement of new products as an alternative policy for the government to purchase independent innovative products, and resume the procurement of innovative products, the first procurement and the green procurement of small and medium-sized enterprises.
The third is to promote the transformation and application of organization, talent team and capacity building. Universities of science and engineering and scientific research institutions should establish internal technology transfer institutions to support the integration of technology transfer, intellectual property management and investment functions. Support the development of enterprises that rely on technical standards and focus on patent pools or patent portfolios. Support qualified science and technology intermediaries to develop third-party payment and guarantee functions.
The fourth is to increase support for intellectual property entrepreneurship. The guiding fund for the transformation of scientific and technological achievements shall increase the support for venture capital, insurance and guarantee institutions to participate in the transformation and application. Reduce the policy threshold of innovation guidance fund and develop the patent mixed pledge loan model. Formulate insurance and reinsurance policies to support conversion and application.
The fifth is to promote the establishment of a reasonable income distribution system for the transformation of scientific and technological achievements. The law should adhere to the principle of giving consideration to contracts and balancing the interests of all parties, and establish corresponding guarantee mechanisms for individuals, departments and units that have made substantial contributions. Explore the establishment of an intellectual property system for job-related scientific and technological achievements.
Sixth, guide and strengthen the management of intellectual property rights in Industry-University-Research cooperation. Improve Industry-University-Research's cooperation policy, and define the measures of intellectual property declaration, licensing, income distribution and management in the construction of patent pools or patent portfolios.
Seventh, improve the management system of state-owned assets. The evaluation of scientific and technological achievements and intellectual property rights should be allowed to float within a certain range and not regarded as the loss of state-owned assets. The competent department should check whether it follows the principle of giving priority to domestic industries or small and medium-sized enterprises in the record.
Eighth, improve the scientific and technological evaluation system. Reform intellectual property evaluation policies such as science and technology plan, ability evaluation, organization identification and talent selection and use, and increase indicators such as patent implementation rate, number and amount of license contracts and other intellectual property quality and transformation and application.
(The author is the director and associate researcher of the Research Office of Intellectual Property and Science and Technology Law, Institute of Science and Technology Policy and Management Science, Chinese Academy of Sciences)