On the issue of foreigners obtaining patent rights in China according to law, China's patent law stipulates the principle of conditional national treatment. Article 18 of China's patent law stipulates: "If a foreigner, foreign enterprise or other foreign organization who has no habitual residence or business office in China applies for a patent in China, it shall be handled in accordance with the agreement signed between his country and China or the international treaty to which he is a party, or in accordance with the principle of reciprocity." It can be seen that foreigners applying for patents in China must meet two conditions: first, the country has a treaty relationship with China; Second, the country and China have the principle of reciprocity. Foreigners applying for patents and handling other patent affairs in China must entrust a patent agency designated by the State Council. At present, the foreign-related patent agencies designated by the State Council are: Patent Agency Department of China Council for the Promotion of International Trade (China International Chamber of Commerce), Shanghai Patent Office, China Patent Agency Co., Ltd., etc. Foreigners must provide the patent agency with the following documents: (1) nationality certificate; (2) documents certifying the location of the headquarters of a foreign enterprise or other foreign organization; (3) The countries to which foreigners, foreign enterprises and other foreign organizations belong recognize that China citizens or units can enjoy patents and other patent-related rights in that country under the same conditions as nationals of that country.
With regard to the priority for foreigners to apply for patents in China, according to the provisions of the Paris Convention to which China is a party, nationals of member countries or people living in member countries who apply for the same invention or utility model in China within 65,438+02 months from the date of filing the first patent application in other member countries, can enjoy priority in China with the supporting documents of filing the first application in other member countries, that is, the date of filing the first application is the date of filing.
Where a unit or individual in China applies for a patent for its invention and creation in China to a foreign country, it shall first file an application with the Chinese Patent Office, and with the consent of the relevant competent department in the State Council, entrust a patent agency designated by the State Council to handle it. Those who apply for a patent in a foreign country without authorization and disclose state secrets shall be given administrative sanctions by their units or the competent authorities at higher levels; If the circumstances are serious, criminal responsibility shall be investigated according to law.
Second, the legal protection of trademark rights.
With regard to the trademark registration of foreigners in China, according to Article 17 of China's Trademark Law, "If a foreigner or foreign enterprise applies for trademark registration in China, it shall be handled in accordance with the agreement signed between the country where it is located and People's Republic of China (PRC) or the international treaty to which * * * is a party, or in accordance with the principle of reciprocity." Article 18 stipulates: "If a foreigner or foreign enterprise applies for trademark registration and handles other trademark matters in China, it shall entrust an organization recognized by the state with the qualification of trademark agency." In other words, China has adopted the principle of conditional national treatment for the trademark registration of foreigners. According to this principle, hundreds of thousands of trademarks from more than 30 countries and regions have been registered in China and obtained the exclusive right to use trademarks. Foreigners registering trademarks and handling other trademark matters in China shall entrust the China International Chamber of Commerce designated by the state as an agent. To entrust an agent, a notarized power of attorney and relevant supporting documents must be formally handled.
With regard to the priority for foreigners to register trademarks in China, according to the principle of the Paris Convention to which China is a party, the State Council, China stipulates that from March 1985 to March 19, nationals of any convention member country may apply for the registration of the same trademark and the same commodity in China for the first time. Where priority is claimed, a written statement, a copy of the first application in other member States and other relevant documents shall be submitted.
If China's export commodities need to be registered abroad, they should be registered with China's industrial and commercial administration authorities in accordance with the Paris Convention and Madrid Agreement to which China is a party or the principle of reciprocity and unconditional national treatment stipulated by the other country, and the China International Chamber of Commerce should be entrusted to apply for registration abroad.
Third, the legal protection of copyright
The international protection of China's copyright law also adopts the principle of "dual nationality national treatment", that is, the works of China citizens, legal persons or other organizations, whether published in China or abroad, are regarded as China's works and protected by China's copyright law. If a foreigner's work is first published outside China and published in China within 30 days, it shall be deemed to be first published in China and protected by law as a China work.
Works published by foreigners outside China are protected by the copyright law of China according to the agreement signed between the country to which they belong and China or the international treaties to which * * * is a party. No matter whether the works of the above-mentioned foreigners are published in China for the first time or not, as long as they conform to the provisions of the copyright law, they will automatically be protected by law in China, just like the works of China citizens.
If the works of citizens, legal persons and other organizations in China wish to be protected by law abroad, they can be published for the first time in a member country of the Convention, protected by law in other member countries, or published in a member country of the Berne Convention within 30 days after the first publication in China. This will be regarded as simultaneous publication and can be protected by law in all member countries.
Generally speaking, in today's era of rapid economic development, it is of great significance for countries to protect intellectual property rights, and it is a problem that countries must consider in the process of developing their economies to formulate a set of perfect intellectual property protection laws. Only in this way can we better protect our intellectual property rights from infringement, make better use of foreign intellectual property rights and better serve our economic development.