Since the Tenth Five-Year Plan, the intellectual property work in Shanxi Province has been further developed and improved. However, we should also be soberly aware that there are still many problems and deficiencies in intellectual property protection in our province. At present, facing the new opportunities and challenges after China's entry into WTO, Shanxi must actively take countermeasures from various aspects and continue to strengthen and improve the protection of intellectual property rights in our province.
China's entry into WTO has created a strong impact on China, and the subsequent effects continue to ferment. As an economically backward province, Shanxi is also a weak province for intellectual property protection. The weak protection of intellectual property rights in Shanxi is directly caused by the backwardness of education, economy, technology and law, as well as the weak awareness of intellectual property protection. Due to the gradient gap of intellectual property protection, Shanxi will face the embarrassing situation of dual intellectual property "invasion" from foreign and domestic developed regions. Facing this grim situation, Shanxi must act immediately, use active and flexible intellectual property strategy and tactics, strive for initiative and win the intellectual property war in the new century.
First, the current situation of intellectual property protection in Shanxi Province
(1) patent right
Science and technology are the primary productive forces, and independent innovation is the primary competitiveness. Strengthening independent innovation and controlling intellectual property rights are the strong technical support to improve the ability of independent innovation and build an innovative country. As one of the sharp tools of independent innovation, patent plays an important role in the development of enterprises. The current patent system in our province has a bright future, as follows: 1. The number of patent applications continues to grow rapidly. According to the statistics of the Provincial Patent Office, the number of patent applications in the province increased from 1475 and 5438+0 in 2006 to 1985 in 2005, and the total number of patent applications during the Tenth Five-Year Plan period was 8782, which was 55.2% higher than that during the Ninth Five-Year Plan period. 2. The patent service system has achieved remarkable results. By the end of 2005, the province 1 1 prefecture-level cities and enterprises and institutions such as Taigang, Taizhong and Taiyuan University of Technology had set up intellectual property management service institutions. In addition, according to the relevant data at the end of 2004, four patent agency services were established in our province, and more than 90 patent agents obtained the patent agency qualification certificates issued by the state. Taiyuan has become a pilot city of national intellectual property rights. 3. The social distribution of patent applications is becoming more and more reasonable. In the distribution of patent applications, invention patents have maintained the growth trend of 10 years. In the first four years of the Tenth Five-Year Plan, the province applied for 6,797 patents, including invention patents 1872, accounting for 27.54% of the total number of patent applications, which was 5 percentage points higher than that in the Ninth Five-Year Plan. The awareness of industrial and mining enterprises to protect independent intellectual property rights has been significantly enhanced, and the proportion of patent applications by industrial and mining enterprises in the total number of applications has increased from 65438+9.23% in 096 to 19.04% in 2004. Compared with 2003, the number of applications for service invention patents increased by 43.9% in 2004. Among the service invention patents, the number of college applications increased by 120%, doubling; The number of enterprise applications increased by 130, with a growth rate of 53.94%. 4. The implementation environment of patented technology has been continuously improved. Taiyuan Heavy Machinery (Group) Co., Ltd., as the first batch of national patent pilot units in Shanxi Province, completed the acceptance in 2004. China CNR Yongji Electric Machine Factory and Shanxi Sanjia Coal Chemical Co., Ltd. were identified as the second batch of patent pilot units of national enterprises and institutions. These figures fully show that the patent industry in Shanxi Province is in a new stage of rapid development.
(2) Trademark right
With the continuous development of intellectual property protection in our province, the trademark awareness of the whole society is also increasing. In recent years, efforts have been made to strengthen the trademark work of enterprises, promote the implementation of trademark strategy, encourage and support enterprises to strive for brand-name trademarks, vigorously promote the target responsibility system of trademark management, standardize the trademark use behavior of enterprises, actively investigate and deal with trademark infringement, counterfeiting and other illegal acts, and protect the exclusive right to use registered trademarks, which has effectively maintained the market competition order in our province and promoted the economic and social development of our province. According to statistics, there are 1 1 prefecture-level city industrial and commercial bureaus in the province that have established specialized trademark management institutions, 87 county (district) industrial and commercial bureaus have established corresponding management institutions, and other county (district) industrial and commercial bureaus and grass-roots industrial and commercial bureaus have full-time and part-time trademark management personnel. There are 197 full-time or part-time trademark managers in the province.
In addition, our province has also made great progress in copyright protection.
Second, the problems and causes of intellectual property protection in Shanxi Province
Since the Tenth Five-Year Plan, the intellectual property work in Shanxi Province has been further developed and improved. However, we should also be soberly aware that there are still many problems and deficiencies in the protection of intellectual property rights in our province compared with the provinces that have done a good job in intellectual property rights.
(A) Shanxi's total intellectual property ownership does not meet the inherent requirements of Shanxi's economic development.
As far as patents are concerned, Shanxi is a province with weak economy and few patents. The small number of patents has always been the bottleneck restricting the independent innovation of enterprises in our province. The number of patent applications in our province ranks only 23rd in China, far behind other brother provinces and cities, and there is still a certain gap compared with the other five provinces in central China. As for trademarks, according to the statistics of China Trademark Network, in 2002, 2003 and 2004, the number of trademark applications nationwide was 52,7591piece, and the number of registered trademarks in our province was 4,998, accounting for 0.95% of the total number of national applications, ranking 25th among 34 provinces, autonomous regions and municipalities directly under the Central Government. There are 9 famous brand products in Shanxi * * *, which ranked 19 in China at the end of 2004. There are 8 well-known trademarks in China, namely Xinghua Village, Qiqiang, Tianji, Tunyu, Water Tower, Zhuyeqing, Orrit and Guanyun, ranking 20th in China.
(two) the technical content of the authorized patents is not high, the regional distribution is uneven, and the structure is extremely unreasonable.
Judging from the composition of patents in our province! Low-tech utility models and designs account for the majority. In 2005, our province granted 220 patents 1220, including 280 inventions and185 utility models and designs. The regional distribution of patents in our province is mainly concentrated in Taiyuan, Yangquan, Changzhi and Datong. In addition, as far as patent applicants are concerned, individuals and industrial and mining enterprises account for a large proportion, and there are few universities and research institutes. In 2005, there were 852 patents granted by individuals, accounting for 69.8%, 203 patents granted by industrial and mining enterprises, accounting for 16.6%, and 165 patents granted by universities and scientific research institutes, accounting for only 13.5% of the total. (Source: Shanxi Intellectual Property Network) The small number of patents owned by enterprises is not conducive to technological innovation in our province because enterprises are the main body of technological innovation, and their patent work directly determines the industrialization of their innovation achievements. The lack of patents in universities and research institutes is seriously out of harmony with the long-term emphasis on research and development over industries and the large amount of research funds invested in universities and research institutions in our province. The reasons are as follows: first, the research of some research institutes is out of touch with the needs of the market and enterprises; Second, there are problems in the science and technology management system. Some scientific and technological workers did not apply for patents immediately, but were eager to participate in the award and publication, so that the economic value of scientific and technological achievements was lost in vain
(3) The trademark awareness is weak, and the phenomenon of registered trademarks is serious, resulting in serious economic losses.
Enterprises in our province have a weak awareness of trademarks, and their enthusiasm for striving for famous and well-known trademarks is not high. Their ability to use trademark strategy to explore the market and participate in competition is not strong, and there are not many trademarks that have important influence in domestic and foreign markets, which has formed an unfavorable situation in which small and medium-sized enterprises have weak brand awareness and large enterprises lack international and domestic well-known brands. At present, Shanxi trademarks are still facing the bad luck of being registered. 1996, Fenjiu Group was registered by a Japanese company because of its trademark, which delayed the entry of Fenjiu into the Japanese market. At the famous trademark recognition conference held in April 2006, Vice Governor Hu Suping reminded Shanxi enterprises to look after their trademarks. Following the registration of Fenjiu and Guanyun by a company in Hong Kong at the end of 2005, the trademark of Donghu was also registered in Hong Kong recently. In recent years, registered trademarks such as Qingheyuan, Qinzhou Huang, Dazhai and Zhuyeqing in Shanxi have occurred frequently, and some of them have not yet been finalized. In addition, at present, counterfeit and shoddy goods are flooding the market in our province, which is not only a matter of legislation, but also problems such as insufficient law enforcement, insufficient coordination among various departments, and local protectionism intervening in counterfeiting.
(d) There are many gaps in local legislation, which do not reflect the flexibility of local legislation in supporting intellectual property law.
Taking copyright legislation as an example, the phenomenon of piracy in Shanxi is not only serious but also open, but there is no corresponding local law to crack down on piracy, publicize and maintain genuine copies. The development of network technology has had a great impact on the existing intellectual property legal system and even the whole legal system. The problem of using other people's trademarks or trade names as domain names and putting other people's works on the Internet for public reading and downloading is quite prominent. Without the support of local legislation, it is difficult to hear their voices.
(E) the administrative enforcement of intellectual property rights is not strong enough, the team strength is insufficient, and the quality is low.
In patent law enforcement, because the current patent law and its implementing rules do not give the administrative departments in charge of patent work necessary administrative compulsory measures such as freezing, sealing up and detaining, it often makes it difficult for law enforcement personnel to actually obtain evidence or control illegal articles, which increases the difficulty of handling cases, resulting in ineffective crackdown on infringement and illegal acts and insufficient protection for patentees. This problem also exists in the process of copyright administrative law enforcement. Judging from the Copyright Law and related implementation regulations, the copyright administrative department can only preserve the evidence of copyright infringement, implement the evidence pre-registration system without compulsory measures such as sealing up and seizure, and the administrative law enforcement means are also lacking. In addition, there are also problems such as insufficient personnel and strength in the administrative law enforcement organs of intellectual property rights in all cities of our province. In addition, due to the strong professionalism and legitimacy of intellectual property rights, the quality of law enforcement personnel is required. However, most law enforcement officers in our province lack professional training and systematic study of intellectual property legal system, and the overall quality of the team can not meet the requirements of intellectual property administrative law enforcement.
(6) The quality and efficiency of trial cases need to be improved.
On the quality of cases, the main manifestations are as follows: first, the amount of compensation for the infringed is low, because the two compensation calculation methods stipulated by law, the actual loss of the infringed or the illegal profit of the infringer, are difficult to operate in practice, and China still implements the principle of "flat compensation" for intellectual property infringement, resulting in the phenomenon of "ten compensations and nine deficiencies" from time to time; Second, the legal relationship of cases is unclear, and there are still a few cases that have been wrongly sentenced or sent back for retrial. In terms of handling efficiency, the handling cycle of intellectual property cases is generally long, from the first trial to the end of the second trial, generally reaching 1 year or more, and some even reaching 5-6 years, and the rights of intellectual property rights cannot be clearly defined. This situation is seriously incompatible with the short product cycle under the market economy. The main reasons are as follows: First, the suspension procedure of patent cases. According to the relevant judicial interpretation of the Supreme Court, if the defendant declares the plaintiff's patent right invalid to the State Patent Reexamination Board during the defense period, the court will generally suspend the trial of the infringement case, and then resume the trial of the infringement case after the Patent Reexamination Board makes a conclusion, thus causing the infringement case to be delayed. Second, it is difficult to identify the facts of intellectual property cases, because the facts of patent litigation often have strong technical expertise. In order to find out the facts of the case, judges often entrust the relevant departments to conduct appraisal and consult experts to find out the facts of the case.
(seven) the coordination between the administrative department and the judicial department needs to be strengthened, and the authority of judicial protection has not been fully reflected.
Due to the influence of traditional customs, when intellectual property infringement occurs, the injured party will generally complain to the intellectual property administrative department. After investigation, even if it is found to constitute a crime, it is rarely transferred to the public security for criminal investigation. As a result, many cases that constitute crimes against intellectual property rights have not been investigated. The reasons are as follows: First, the administrative organs have input costs in the administrative enforcement of intellectual property rights. Once transferred to the public security for criminal responsibility, they lose the right to handle cases, can no longer be subject to administrative punishment, and the implementation cost can not be recovered. Second, the evidence materials of administrative law enforcement are difficult to be directly converted into evidence in criminal proceedings, mainly because the administrative law enforcement is relatively simple, the discretion of administrative law enforcement is large, and the requirements for evidence relevance are weak. However, in criminal proceedings, it is difficult to obtain evidence because of the high requirements for evidence. Third, the existing intellectual property laws and regulations are not clear about the filing standards of intellectual property crimes, and there is no provision on the conditions under which administrative law enforcement organs should be transferred to judicial organs, and there is also a lack of corresponding supervision mechanism.