In order to realize the international integration of the patent system, the 27th meeting of the 7th NPC Standing Committee made a decision to amend China's patent law on September 1992. This decision has greatly improved the level of China's patent system. However, with the establishment of socialist market economy, the deepening of economic and political system reform, and the proposal and implementation of the policy of rejuvenating the country through science and education, there are still some provisions in China's patent law that cannot meet the needs of objective development. Here, this paper attempts to discuss the following issues in China's patent law, hoping to play a certain role in perfecting China's patent system.
First, on the abolition of the national planning permit system.
Article 14 of China's Patent Law stipulates: "According to the national plan, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government have the right to decide on important invention-creation patents held by units owned by the whole people within their own systems or under their jurisdiction, allowing designated units to implement them, and the implementing units shall pay royalties to the patentee in accordance with state regulations." This provision of China's patent law is usually called "national plan licensing system". The following problems can be seen from the provisions of China's patent law on the national plan licensing system. First of all, the planned economy is the basis of the national planning permit system. China's patent law was promulgated in 1984 and implemented in 1985. When this patent law was enacted, China still practiced a planned economy. 1984 10 in the Decision of the Central Committee on Economic System Reform adopted on October 20th, it was pointed out that since the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China, "generally speaking, China has implemented a planned economy, that is, a planned commodity economy, rather than a market economy completely regulated by the market." In this planned economy environment, it is decided that China's patent legal system must establish a national plan licensing system, which must be based on the national plan. On the contrary, the national plan licensing system cannot be applied to patents that do not use units owned by the whole people to complete the national plan. Second, the authorization of the national plan license is completely taken from the statutory administrative organ. In other words, other units under ownership by the whole people can exploit their patents without the consent of the units under ownership by the whole people, and only upon the decision of the statutory administrative organ, and the units under ownership by the whole people shall not refuse. Third, the unit that implements the national plan license only pays the royalties to the unit that enjoys the patent right according to the royalties standard stipulated by the state. This shows that the royalties involved in the national plan license are subject to the national quotation, and the units owned by the whole people with patent rights have no right to decide the level of royalties. As can be seen from the above, the national plan licensing system in China's patent law fully embodies the characteristics of planned economy.
China's patent law has been implemented for more than ten years. With the establishment of China's socialist market economy and the implementation of the patent law, the author believes that the national planning permission system is no longer necessary and should be abolished. Because, firstly, the establishment of socialist market economy makes the national planning permission system lose its foundation. Great changes have taken place in China's economic system since the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China, especially since the 14th National Congress of the Communist Party of China explicitly proposed to establish a socialist market economic system in China. 1In September, 1995, the Central Committee's Proposal on Formulating the Ninth Five-Year Plan for National Economic and Social Development and the Long-term Target of 20 10 pointed out that the transformation of the economic system from the traditional planned economy system to the socialist market economy system is one of the keys to realize the ninth five-year plan and the target of 20 10. If the skin does not exist, the hair will attach. With the transformation of the economic system, China's patent law is attached to the planned economy, and the national planning permission system serving the planned economy has lost its living soil and can no longer meet the needs of the development of the socialist market economy. Therefore, we should cancel the national planning permit system in accordance with the requirements of developing the socialist market economic system. Second, the transformation of government functions makes the national planning permission system lose the basic conditions for implementation. Transforming government functions is an urgent need to establish and develop the socialist market economy. According to the requirements of political and economic system reform, the government's function in managing economy and science and technology in the future is mainly to formulate and implement macro-control policies and create a good environment conducive to economic and scientific development, rather than directly managing or interfering with the production and operation activities of enterprises and the implementation activities of advanced technologies. However, according to the patent law of our country, the implementation of the national plan license for important inventions and creations must be authorized by the statutory administrative organ for each patent separately. At present, the state administrative organs no longer directly intervene in specific technology promotion activities, and the state planning permission at this time is lost.
Authorized person. The original authorizer is no longer engaged in authorization activities, and the national plan licensing system is invalid. Third, patented technology is related to patents.
The complexity of technology also determines that it is difficult to implement the national plan license. The patented technology licensed according to the national plan is by no means achieved overnight.
Patent technology, but an important patent technology, is cutting-edge technology. With the improvement of patent awareness and competition awareness, patent applicants are
In order to protect our own interests, we often apply for patents with basic technologies and put core technologies or key technologies in the form of proprietary technologies.
Put it in a confidential state. In this way, even if the administrative organ issues a license to the implementing unit according to the national plan, the patentee will not teach or will not teach.
The implementing unit shall impart technical secrets, and shall not only implement other people's patented technology based on the contents of the patent specification.
In a word, the current national planning permission system not only loses the foundation of existence, but also lacks the possibility of implementation. In fact, judging from China's patent law.
In the history of implementation, national planning permission has not been put on the agenda. Therefore, in the establishment and development of the socialist market economy today, we should
We should proceed from reality, cancel the national planning permission system, and no longer promote advanced technology by compulsory means. Instead, patentees (including patentees in units owned by the whole people) should be given more freedom to implement and transfer patents, so that patentees can solve the problems of patent implementation and advanced technology promotion through consultation on a voluntary basis.
Two, about the ownership of the patent rights of units owned by the whole people.
Article 6 of China's patent law stipulates: "After the application is approved, if a unit owned by the whole people applies, the patent right shall be held by the unit; Where a unit or individual under collective ownership applies, the patent right belongs to the unit or individual. " From this provision, we can see two problems: first, on the issue of patent ownership, the rights enjoyed by units under ownership by the whole people are different from those enjoyed by units and individuals under collective ownership. Second, units owned by the whole people only have the right to hold the patents approved by them.
The academic circle of patent law in China once thought that it embodies the spirit of reform in the field of science and technology and gives units owned by the whole people greater patent autonomy. But after careful analysis, there are many problems in this provision. First, the meaning of the holding right enjoyed by units owned by the whole people in China's patent law is not clear. From the traditional legal theory, there are only concepts such as ownership and possession, but there is no concept of possession. What is the nature of possession in China's patent law? What is its content? There is no provision or explanation in China's patent law and its implementing rules. From the perspective of legal interpretation, "possession" is a concept that has neither legislative interpretation nor judicial interpretation since the implementation of China's patent law for more than ten years. Second, China's patent law does not clearly stipulate who owns the patent rights of units owned by the whole people. The ownership of patent right is the core of patent law. Since the patent law only gives units owned by the whole people the right to hold their patents, it should clearly stipulate who will own the patents. However, China's patent law does not explicitly answer this question. According to the nature of units owned by the whole people, theorists often explain that the patent rights of units owned by the whole people should be owned by the state. However, this explanation is academic after all and has no legal effect. Third, if it is inferred that the patent right of units owned by the whole people belongs to the state, then another problem will arise, that is, how the state exercises ownership over such patents. However, there is no clear stipulation in China's patent law and other laws and regulations. It can be seen that the ownership of patents of units owned by the whole people by the state is both nameless and untrue. The author believes that China's patent law should abandon the concept of "holding" and directly give the units owned by the whole people the ownership of their patents. This is because, firstly, the "holding" mentioned in China's patent law is actually "all". The third paragraph of Article 6 of China's Patent Law clearly stipulates: "The owner and holder of the patent right are collectively referred to as the patentee." This provision means that the patent owner is the patentee and the patent holder is also the patentee. China's patent law gives the patentee the right to manufacture, use, sell and import patented products and methods, as well as the right to use, sell and import products directly obtained by this method, the right to sign a patent licensing contract with others and collect royalties, and the right to transfer and abandon patent rights. These rights are the concrete embodiment of the four powers of ownership: possession, use, income and disposal. For this series of rights, the patentee enjoys,
Patent holders also enjoy it. Judging from its connotation, what is said here is no different from holding. Therefore, there is no need to use two different
Concept. Some scholars believe that "holding" is different from "all". The main reason is that patents held by units owned by the whole people can be implemented by the state.
Request permission; The transfer of patent application rights and patent rights by units owned by the whole people must be approved by their superiors, which is exactly what the state owns to the whole people.
Performance of patent ownership in institutional units. In fact, none of these reasons can be established. Firstly, the national planning permission system is analyzed. For legislative purposes
Look, the purpose of implementing national planning permission is to popularize advanced technology, complete national plans and safeguard the interests of the state and the public, not as a country.
Means of exercising ownership. In terms of scope, the first paragraph of Article 14 of China's Patent Law stipulates that units under ownership by the whole people may implement state plans according to law.
However, the second paragraph of this article also stipulates that the patents of units and individuals under collective ownership in China shall be reported to the State Council by the competent department of the State Council for approval, and shall be handled with reference to the above provisions.
The provisions of paragraph ",that is, the patents of collectively owned units and individuals in China can also be licensed by the state plan according to law. It can be seen that the implementation of the national plan permit.
It is not a unique feature of units owned by the whole people, and has no direct relationship with the ownership and holding of patents. Therefore, the implementation of the national plan
It is unconvincing that planning permission is a symbol of the state's exercise of ownership. In addition, from the perspective of patent transfer, "units owned by the whole people transfer patents.
The application right or patent right must be approved by the higher authorities, which has nothing to do with the exercise of ownership. An action must be approved by the superior.
The approval of the administrative department is the embodiment of state administration, not the exercise of property ownership. Chinese-foreign joint venture
For the establishment of operating enterprises and wholly foreign-owned enterprises, the relevant laws stipulate the procedures approved by the relevant departments of the State Council. Maybe this is the right of the country.
Do these enterprises exercise ownership? China's patent law stipulates that units and individuals under collective ownership must transfer the patent application right or patent right to foreigners.
Approved by the relevant departments of the State Council. Can it be said that this is also the state's exercise of ownership over collectively owned units and individuals? In short, from our country
From the legal point of view, the distinction between ownership and possession has no practical significance, and the concept of revocation of possession can make China's patent law more rigorous and scientific.
On this basis. Second, in order to maintain the consistency of the whole intellectual property system, the concept of possession should also be abolished in China's patent law. Patent legal system, trademark law
Legal system and copyright legal system are the three pillars of intellectual property law. Judging from China's trademark law and copyright law, units owned by the whole people can follow
Law obtains trademark right and copyright, but there are no problems of "ownership" and "possession" in these two laws. Therefore, in the patent law, "establishment" is revoked.
The concept of "yes" is conducive to consistency with other intellectual property systems. In fact, the state should attach importance to patents or other intellectual property rights of units owned by the whole people.
It is very difficult to exercise ownership. It is actually set in the law, insisting that the state has ownership over it, but it cannot exercise ownership.
Unreal and meaningless rights. Third, it is conducive to mobilizing the list of ownership by the whole people and confirming that units owned by the whole people enjoy the ownership of their patents.
Passion for scientific research activities. Ownership is the most important and basic right among all civil rights, and obtaining ownership means obtaining its object.
Complete control, the obligee can exclude anyone's illegal intervention and can exercise it in the most favorable way within the scope permitted by law.
Yes, for profit. Therefore, the law gives the units owned by the whole people the ownership of their patents, and the units owned by the whole people will cherish themselves more.
Patent rights, we will engage in the development and implementation of inventions with a more proactive attitude. In short, in China's patent law, "establishment" is revoked.
The provision of "you" will make China's patent law more realistic and scientifically express relevant legal norms.
Three, on the establishment of service invention patent system.
The ownership of service invention patent right is a very important issue in patent legislation in various countries. Our country takes service invention into account when formulating the patent law.
The invention made by the inventor is to provide him with necessary instruments, equipment, materials, funds and technical data for study, investigation and further study in the unit.
In this case. In order to safeguard the interests of the unit, Article 6 of China's Patent Law stipulates that it is necessary to perform the tasks of the unit or mainly use the materials of the unit.
The right to apply for a patent for a service invention-creation with quality conditions belongs to the unit; After the application is approved, the patent right shall be owned or held by the unit. from
Judging from this provision, China's patent law adopts the practice that the patent right of service invention belongs to the unit.
Regarding the ownership of service invention patents, the legislative styles of countries around the world are different. One is to stipulate that the patent right of service invention belongs to the unit (or employer)
All, like France. Second, it is stipulated that it belongs to the inventor, but the inventor can stipulate the service invention patent through the contract with his enterprise (or employer).
Belonging, America is like this. Third, it is stipulated that the inventor's unit (or employer) should choose, which is the case with the German employee invention law. The fourth is to stipulate the return.
Inventors and companies are * * *, such as Russian and Taiwan Province provinces. The author believes that the ownership of the patent right of service invention in China should be * * *.
The system of allowing negotiation mainly replaces the system that the patent belongs to the unit, that is, the patent right of service invention belongs to the inventor and general inventor.
* * * Yes, but both parties can solve the problem of patent ownership of service invention through free agreement.
The author believes that the establishment of service invention patent is determined by the basis of service invention and the objective requirements of scientific and technological development. First, send
The joint efforts of the Ming Dynasty and the inventor units are the basis for the patent right of service invention to be owned by both. In the service invention, the inventor's unit issued
Ming people provided the necessary material conditions and other related conditions. These conditions play an important role in the success of the invention, but this is only one aspect of the problem.
. On the other hand, the inventor invested a lot of creative labor in the whole process of invention. Without the efforts of the inventor, the superior material conditions are as follows.
No new invention will appear naturally. We must note that the inventor's efforts are an extremely important basic condition for the success of the invention. visible
It only emphasizes the protection of the interests and rights of the inventor's unit, and the patent right of service invention is only enjoyed by the unit, which conforms to the principle of fairness emphasized by law.
Deviate. Therefore, in order to affirm the role of both parties and protect their rights, only the patent right of service invention belongs to the inventor and his unit.
* * * Talent is fair and reasonable. Second, the establishment of the * * * system of service invention is conducive to mobilizing the enthusiasm of inventors to engage in invention research and implement invention achievements.
. In service invention, the inventor's factor is the decisive factor. From a local perspective, the inventor's enthusiasm is directly related to the success or failure of the invention; From the whole society
Yes, the enthusiasm of inventors is directly related to the speed of the development of science and technology in the whole society. Under the system that the service invention patent belongs to the unit, it is issued.
Ming people worked hard, and as a result, the patent right was completely owned by the unit, but the inventor was excluded. The inventor failed to get his due rights,
This inconsistency between rights and obligations and disrespect for human factors will inevitably affect the inventor's enthusiasm for invention and creation. Even if the research is successful,
After obtaining the patent, the inventor paid little attention to the implementation of the patent. The establishment of the * * * system makes the rights and obligations of service invention patents consistent.
After the patent application is approved, the inventor also enjoys the patent right. The inventor will engage in the research of the invention as a master. After the invention is successful,
Cooperate closely with the unit with a positive attitude, promote the implementation and use of patents, and make patents produce economic and social benefits as soon as possible.
Realize. Therefore, the ownership of service invention patent right is a booster to arouse the enthusiasm of inventors.
However, if the principle of * * * ownership of service invention patent right is not combined with the principle of consensus, it can not adapt to the socialist market well.
Economic needs. With the establishment and development of China's socialist market economy, all civil subjects are adapting to complex and changeable competition in order to safeguard their own interests.
The fierce market requires complete freedom in investment, production and sales. This requirement is reflected in the law, and it is hoped that the law will give civil subjects.
More freedom to agree on rights and obligations. The combination of legal certainty principle and consensual principle is the trend of future civil legislation. Therefore, in the establishment of service invention
At the same time, the law should give the parties the right to agree on the ownership of the patent right of service invention through agreement. The inventor and his unit
It can be stipulated in the contract that the patent right of service invention belongs to the inventor, the unit or their respective ownership shares. get through
The agreement makes the ownership of service invention patent flexible to meet the needs of different parties in different situations.
Four, about the patent protection of new varieties of animals and plants.
The National People's Congress Standing Committee (NPCSC) revised China's patent law on September 1992, and the revised patent law expanded the scope of patent protection. But, I
Article 25 of the Patent Law of People's Republic of China (PRC) still grants the patent right only to the production methods of new varieties of animals and plants that conform to the provisions of the Patent Law, and also to the new varieties of animals and plants themselves.
Is not to grant a patent right.
Whether to protect new varieties of animals and plants should be studied as an important issue in patent theory. The author believes that China's patent.
The law grants patent rights and legal protection to new varieties of animals and plants that meet the requirements stipulated in the patent law. Because the patent protection for new varieties of animals and plants is
It means a lot.
First of all, patent protection of new varieties of animals and plants is conducive to accelerating the development of agriculture in China. China is a big agricultural country, developing agriculture.
This is a major event related to political stability and national economic development. With the development of society, some contradictions in the process of agricultural development in China are becoming more and more prominent.
The contradiction between the shortage of cultivated land and population growth, the contradiction between the low level of agriculture and the continuous improvement of people's living standards, the weakness of agriculture and
The contradiction between the development of modern industry needs a large number of agricultural raw materials, the contradiction between the reduction of agricultural products exports and the increase of agricultural products imports. , all hard in my hand.
In front of the children. Therefore, it is clearly stated in the Central Committee of the Communist Party of China's Proposal on Formulating the Ninth Five-year Plan for National Economic and Social Development and the Long-term Target of 20 10,
Out, to strengthen agriculture in the first place in the development of national economy. The best way to develop agriculture is to take the road of rejuvenating agriculture through science and technology and constantly improve the level of science and technology.
Especially the contents of new varieties of animals and plants in agricultural development. At present, it is estimated that the proportion of science and technology in China's agricultural growth is less than 30%, only
It is equivalent to half of that of developed countries. Therefore, in the future, we should focus on agricultural science and technology to accelerate the development of agriculture in China. however
New agricultural science and technology, new varieties of animals and plants, like inventions in other fields, are also people's creative scientific research achievements and expectations for specialization.
Legal protection. If the patent right is not granted to new varieties of animals and plants, the inventors of new varieties of animals and plants will face plagiarism or arbitrary use by others, and there will be no
Legal protection, their rights and interests have to be violated. Now, some countries in the world have successfully used the patent system to protect new varieties of animals and plants.
1930, the United States formulated the patent system for the protection of new plant varieties for the first time. Since then, Germany, France, Italy, Poland, Japan, Denmark, Sweden and so on.
The invention of new plant varieties is also protected by patents. Romania, Hungary and so on. Patents are also granted to new animal breeds. China should borrow money.
In view of the experience of these countries, patent protection should be given to new varieties of animals and plants, so as to promote the agricultural development of the whole country and turn China from a big agricultural country into a powerful one.
Country.
Second, patent protection of new varieties of animals and plants is conducive to encouraging investment in agriculture. To develop agriculture and develop new varieties of animals and plants, it is necessary to enter
Invest a lot of money to establish advanced laboratories or experimental bases. Whether investors invest or not is an extremely important factor, which depends on it.
Whether a scientific research achievement can be protected by patent law and whether the investment can be rewarded. If the developed new varieties of animals and plants are not protected by the patent law
This means that inventors or investors have no exclusive rights to new animal and plant varieties. As soon as these new achievements come out, anyone can use them for free.
In this way, investors will inevitably be unable to recover their investment, which is unprofitable, while non-investors will get something for nothing and enjoy the success. This phenomenon of putting the cart before the horse will inevitably fail.
It hurts the enthusiasm of investors to engage in the development of new varieties of animals and plants. On the contrary, if patent protection is given to new varieties of animals and plants, investors can take advantage of it.
The research results monopolize the market, and the investment is recovered through their own use, licensing others to use them, or collecting patent transfer fees through transfer.
Profits. The protection function of the patent system for investors can encourage investors to continue or expand their investment in the development of new varieties of animals and plants, so that agricultural scientific research can
Funds form a virtuous circle.
Third, patent protection of new varieties of animals and plants is conducive to mobilizing the enthusiasm of agricultural researchers to cultivate new varieties of animals and plants. High yield, high quality,
Efficient new varieties of animals and plants play a great role in agricultural development. It often takes several years or even more than ten years to cultivate new varieties of animals and plants.
Time. Some agricultural researchers spend their whole lives cultivating one or several new varieties. Now, due to the lack of animal and plant patent law,
Variety protection makes the efforts, research results and economic benefits of agricultural researchers not organically unified. In this case, the Agricultural Research Fund
The problem of long-term shortage has not been solved, and the living conditions of agricultural researchers have not been improved for a long time. If this goes on, agricultural researchers will engage in sports.
The enthusiasm of research on new plant varieties will be seriously frustrated. At present, many agricultural researchers abandon agriculture and change careers, and there is a shortage of agricultural researchers.
The human phenomenon is the concrete embodiment of this problem. If a patent protection system is established for new varieties of animals and plants, the use of new varieties or the transfer of achievements.
It will bring gratifying economic benefits to agricultural researchers and agricultural research units, not only make up for the lack of funds of scientific research units themselves, but also
It can enable agricultural researchers to obtain corresponding rights and get corresponding rewards or compensation, thus further encouraging the majority of agricultural researchers to join in agriculture.
Determination and confidence.
Fourthly, the patent protection of new plant varieties is also the requirement of GATT on intellectual property rights agreement for member States. GATT
Article 27, paragraph 3, of the Agreement on Trade-related Aspects of Intellectual Property Rights (including trade in counterfeit goods) stipulates that all member States should "use the patent system or
Effective special system, or any combination system, protects new plant varieties. These Provisions shall take effect in the Agreement on the Establishment of the World Trade Organization.
Check after 4 years. "China is a signatory to the GATT agreement on intellectual property rights and is actively seeking to join the World Trade Organization, so as to
In order to realize our promise, we should also give patent protection to new plant varieties.
To sum up, it is an extremely important issue to grant patent protection to new varieties of animals and plants. We should amend the patent law as soon as possible to protect new varieties of animals and plants.
Included in the scope of patent protection. However, some people hold a negative attitude towards this. They believe that new varieties of animals and plants are affected by climate, soil, latitude and longitude, sunlight and so on.
The natural environment has a great influence, there is no possibility of duplication, and it is impossible to produce exactly the same thing, so the patent right cannot be granted. We believe that this principle
The reason cannot be established. Because, with the development of modern agricultural technology, new animal and plant varieties have been able to reproduce and produce the same animals and plants. this
It should be noted that the inclusion of new varieties of animals and plants in the scope of granting patents does not mean that all new varieties of animals and plants can be patented.
No patent right may be granted for new varieties of animals and plants that do not meet the requirements stipulated in the Patent Law. New varieties of animals and plants do have their own characteristics, so special attention is paid to them.
The following two points should be paid attention to when protecting: first, the new varieties of animals and plants that have been granted patents must be novel, creative and practical, and must also
Have stability and identity. Only when new varieties of animals and plants change their original heritability and become better new varieties of animals and plants will the yield and performance be improved.
The same thing can be patented only if it is repeated stably. Second, for those animals and plants that destroy the ecological balance, violate physiological ethics and are harmful to human beings.
New varieties should be restricted and no patent right can be granted.
In a word, although China's revised patent law has made progress in many aspects, there are still some imperfections. We must deal with these problems.
Seriously and deeply study and further improve China's patent legal system, so that China's patent system can fully play its role in the strategy of rejuvenating the country through science and education. *