From the practical point of view, there is still a lot of work to be done to further improve and strengthen China's intellectual property protection mechanism and achieve practical results.
1. From the strategic height of improving the foreign investment environment, fully understand the importance of strengthening intellectual property protection.
After joining the WTO, China will further open its domestic market to the outside world. It is this market that contains unlimited business opportunities, so many multinational companies are optimistic about the China market. However, when foreign businessmen talk about the investment environment, "in addition to reflecting the old problems such as' four chaos' (random inspection, arbitrary charges, arbitrary fines and arbitrary apportionment) and bureaucracy, there are nearly 1/4 foreign businessmen denouncing the increasingly serious phenomenon of counterfeit products". A western lawyer who studies Chinese mainland's intellectual property rights points out that about 1/3 to 1/2 of the budget used by internationally renowned brand companies for global intellectual property protection is spent in China. Counterfeiting and piracy in Chinese mainland have reached the point where they must be controlled. It is estimated that this behavior has caused hundreds of billions of dollars in losses to famous enterprises at home and abroad every year, and the China government has also lost hundreds of billions of dollars in tax revenue. In view of this, nearly 50 famous multinational companies from Europe, America and Japan have set up the "Quality Brand Protection Committee of China Foreign Enterprise Investment Association" in China. Similar organizations include China Plant Protection Association, which is engaged in the sales of pesticides and fertilizers in China, attracting many foreign companies to participate and specialize in counterfeiting pesticides; The International Wine Association is engaged in counterfeiting imported wines. The above acts of counterfeiting, piracy and other violations of intellectual property rights will greatly offset China's efforts to improve the foreign investment environment, and we must not take them lightly.
2. Take effective measures to effectively protect intellectual property rights.
We will continue to carry out in-depth intellectual property protection awareness and legal education throughout the country, and further form a good atmosphere and environment for respecting and safeguarding intellectual property rights and cracking down on counterfeit products and infringement of intellectual property rights. It makes counterfeiting, piracy and infringement of intellectual property rights like rats crossing the street, and everyone cries out. At the same time, in specific anti-counterfeiting activities, it is necessary to overcome local protectionism, further improve law enforcement, and effectively strengthen intellectual property protection. Secondly, given that intellectual property cases are highly professional and technical, foreign-related intellectual property disputes will make the trial of cases more complicated. It is extremely necessary to train a high-quality intellectual property law enforcement team as soon as possible and improve the overall level of intellectual property law enforcement in China through the combination of theory and practice. Moreover, some data show that only a few large enterprises such as Haier and Baosteel have set up functional departments to handle patent affairs as a whole; In Shanghai, which has the most developed domestic economy, there are only more than 200 professionals specializing in patent agency. Therefore, it is necessary to train professionals related to intellectual property rights from a wider range to meet the increasing demand of China government departments and all walks of life for intellectual property protection. At the same time, as a social division of labor, we should vigorously support a number of intermediary agencies that provide intellectual property services to the society in a long historical period after China's accession to the WTO, so as to make them an important part of China's intellectual property protection system and play their due intermediary service role in strengthening intellectual property protection.
3. Correct application of legal principles to ensure the effectiveness of technology trade and the interests of both parties.
In the specific work of technology import and technology export, in addition to correctly grasping the legal requirements of intellectual property protection, correctly applying legal principles and improving negotiation and signing skills are also important links to ensure technology trade transactions and the interests of both parties. Ensuring that the intellectual property rights of technology providers are effectively protected in technology trade is usually the key to realize technology trade transactions. Therefore, in the process of technology introduction, enterprises should mainly protect foreign intellectual property rights from infringement; When exporting technology, how to ensure that the intellectual property rights of Chinese enterprises are not damaged? However, it is equally important that we have comprehensive intellectual property protection knowledge to ensure that we will not be cheated in the negotiation and signing process.
1) How does technology import protect foreign intellectual property rights?
(1) patent technology protection
In the process of negotiation and signing, in addition to providing protection for foreign patents in strict accordance with the provisions of China Patent Law, the following measures should also be taken to protect the interests of suppliers and recipients from damage:
A. In order to prevent illegal foreign businessmen from transferring other people's patented technology to China, Chinese enterprises must adhere to the following principles when negotiating and signing contracts: that is, foreign patent technology holders must ensure their effective possession of the patented technology through the "Whereas" clause, otherwise they should not sign contracts no matter how favorable the conditions are, so as to avoid being involved in patent litigation disputes inexplicably in the future.
B. In order to protect the unrestricted dissemination and use of foreign patented technology after introduction, when signing a contract with the foreign party, the scope of cooperation and the use period of imported patented technology should be clearly stipulated.
C. In order to effectively safeguard the legitimate rights and interests of foreign patent technology holders, the supplier and the licensee should adopt authorization clauses in the contract, and specify the form of patent license and the countries or regions to which the licensee can sell the products produced by this technology.
D. When the technology import contract expires and the foreign patent does not exceed the effective protection period, it shall negotiate with the foreign party to determine how to continue to use the patented technology in accordance with the provisions of the patent system.
(2) Protection of patented technology
In addition to protecting foreign know-how through the Anti-Unfair Competition Law, the General Principles of the Civil Law, the Criminal Law and other administrative regulations, the following protection measures should be taken during the negotiation and signing:
A. Before concluding the technology import contract, sign a confidentiality agreement with the supplier on the supplier's proprietary technology, undertake the necessary confidentiality obligations and pay the corresponding confidentiality fees.
B it should be clearly stipulated in the contract that after the expiration of the technology import contract, we will continue to undertake the confidentiality obligation for a certain period.
C suppliers should be allowed to make necessary restrictions on our access to professional and technical personnel.
D suppliers should be allowed to reasonably limit the sales area of products produced by us using their proprietary technology.
(3) foreign trademark protection in technology introduction.
A. In order to maintain the reputation of foreign trademark, the quality of the products we use in foreign trademark must be consistent with the quality of the original trademark.
B the foreign party has the right to supervise and guide the production or sales of products using its trademark.
C. After efforts, if the quality of our products using the foreign trademark still fails to reach the quality of the products with the original trademark, the foreign party has the right to stop us from continuing to use its trademark.
D after the expiration of the technology import contract, the foreign party has the right to prevent us from continuing to use its trademark unless the two parties sign another agreement.
(4) the protection of computer software
A. A foreign party can register its software in China Computer Software Registration Management Center, and its software registration certificate will be used as evidence for future software copyright disputes.
B after the computer software license import contract is registered, the import quantity stipulated in the contract can be used as the management basis for preventing counterfeiting and illegal copying in the domestic market.
C. In order to prevent foreign software from being used arbitrarily, it should be stipulated in the software license contract that the foreign party should make necessary restrictions on the scope and area of its software use.
2) How to protect our intellectual property rights in technology export?
(1) Protection of China's export patented technology
In view of the obvious geographical characteristics of patent technology protection, the prerequisite for China's patent technology to obtain legal protection in the technology importing country is to file a patent application with the patent office of that country and obtain the patent right of that country.
(2) Protection of export know-how
The data show that the export of patented technology in China's technology export trade does not exceed 10%, and the rest are mostly proprietary technology exports. Therefore, the protection of export know-how is very prominent. However, in fact, the international means of protecting know-how is not perfect, but it can usually be protected by the relevant provisions in the contract law, tort law, anti-unfair competition law, civil law and criminal law of the receiving country that introduced China's know-how for export. If you refer to the protection practice of American know-how, you can bring a lawsuit in three ways:
A bring a lawsuit based on the contract, that is, when the recipient uses or discloses some of our proprietary technologies in violation of the contract, we can sue him for breach of contract;
B bring a lawsuit on the grounds of infringement, that is, bring a lawsuit against the infringer on the grounds that the recipient uses improper means to infringe our proprietary technology;
Bring a lawsuit based on ownership. If our proprietary technology is used or disclosed by a third party without authorization, and if our proprietary technology is infringed, we can bring a lawsuit against it.
(3) the goal of protecting exporters
From a certain point of view, China's technology export enterprises often pay less attention to trademark registration than to patent application. Due to the current international practice of trademark registration, one is the principle of prior registration and the other is the principle of territorial extension. That is to say, if our trademark is not registered in the other country, or the registration time is later than that of the registered person, then the products produced by our export technology will not be protected by the corresponding trademark in the technology importing country. Therefore, before exporting complete sets of equipment or key equipment containing patented technology, China enterprises should organically combine the patent right with the trademark right. When countries interested in importing China technology apply for patents, they should also consider applying for trademark registration of products produced with this technology and equipment.
(4) Protection of export computer software
Computer software exported from China, whether source program or object program, should be protected as copyright according to Berne Convention for the Protection of Literary and Artistic Works, with a protection period of 50 years. Specific protection measures can be considered as follows:
A. Go through the registration formalities with the copyright administration institution of the technology importing country, so as to obtain preliminary evidence that can be used for administrative treatment or litigation in case of disputes in the future.
B Chinese software copyright owners can apply to the customs for detaining or destroying the imported or exported pirated software through the corresponding administrative and legal organs of the receiving country after they have obtained conclusive evidence of piracy infringement.
C. In order to prevent the computer software exported from China from being used arbitrarily, the consent of the recipient should be obtained in the software licensing contract, and the scope and area of use of the software should be restricted. Secondly, the contract should clearly stipulate the ownership of software rights, the authorization to end users, restrictions such as not selling, subletting or transferring, not carrying out reverse engineering, and the obligations and exemption conditions of the obligee.
Second, give full play to the policy-oriented role and guide the healthy development of technology trade.
Timely revise and issue the guiding policies for utilizing foreign capital, encouraging the development of China's software industry and integrated circuit industry, and promoting the export of high-tech and its products, so as to create favorable conditions for rationally guiding foreign capital, focusing on introducing foreign advanced technologies, further encouraging the development of domestic high-tech industries, and consolidating the foundation of technology export.
1. New policy of utilizing foreign capital
Practice shows that attracting foreign investment is an important channel for China to introduce foreign advanced technology. Since the reform and opening up, China has made great achievements in utilizing foreign capital. At the end of 1997, with the approval of the State Council, the Catalogue of Industries Directed by Foreign Investment (referred to as the original catalogue) was issued by the State Planning Commission, the State Economic and Trade Commission and the Ministry of Foreign Economic Relations and Trade Cooperation, which played an important role in guiding foreign investment. However, with China's accession to the WTO in February, 20001,China's foreign investment policy must be in line with the corresponding international rules of the WTO, so as to fulfill the solemn commitment made by China after its accession to the WTO. Secondly, with the approval of the State Council, the State Planning Commission, the State Economic and Trade Commission and the Ministry of Foreign Trade and Economic Cooperation issued a new "Foreign Merchants" on March 4, 2002, in order to further improve the quality and level of utilizing foreign capital and make attracting foreign capital play a greater role in promoting the strategic adjustment of China's economic structure and the reform of state-owned enterprises in the new period.
2. Policies to encourage the development of software industry and integrated circuit industry.
In order to promote the development of China's software industry and integrated circuit industry, enhance the innovation ability and international competitiveness of information industry, promote the transformation and product upgrading of traditional industries, and further promote the sustained, rapid and healthy development of the national economy, China issued "Several Policies to Encourage the Development of Software Industry and Integrated Circuit Industry" on July 1 1 2000. The Ministry of Foreign Economic Relations and Trade Cooperation, the Ministry of Information Industry, State Taxation Administration of The People's Republic of China, the General Administration of Customs, the State Administration of Foreign Exchange and the National Bureau of Statistics jointly issued the Notice on Issues Related to Software Export on October 4th, 2006.
In terms of intellectual property protection, the state clearly requires:
(1) The copyright administrative department of the State Council should standardize and strengthen the software copyright registration system, encourage software copyright registration, and give priority protection to registered software according to national laws.
(2) In order to protect the legitimate rights and interests of Chinese and foreign copyright owners, no unit may use unauthorized software products in its computer system.
(3) intensify efforts to crack down on smuggling and pirated software, and severely investigate and deal with activities that organize the production, production and sale of pirated software. The Ministry of Public Security, the Ministry of Information Industry, the State Administration for Industry and Commerce, China National Intellectual Property Administration, the National Copyright Administration and State Taxation Administration of The People's Republic of China should regularly carry out special actions to jointly crack down on pirated software.
In order to promote the export of software, the state clearly stipulates that:
(1) Software enterprises with a registered capital of more than 1 10,000 yuan (including 1 10,000 yuan) can enjoy the right to export their own software. And may apply to the Ministry of Foreign Trade and Economic Cooperation for the establishment of overseas branches.
(2) Software export enterprises may apply to the competent foreign trade department for development funds for small and medium-sized enterprises and the international market, so as to expand software export and explore the international market.
(3) Encourage software export-oriented enterprises to pass GB/T 1900 1-2000 quality management system certification and CMM (Capability Maturity Model) certification, and apply for corresponding certification fees.
(4) Software export enterprises will get corresponding preferential policies in credit, export credit insurance, taxation and foreign exchange settlement.
(5) In terms of software export management, an online registration management center for software export contracts was established on the website of the Ministry of Foreign Trade and Economic Cooperation of China Electronic Commerce Center to realize online registration management of software export contracts. The China Chamber of Commerce for Import and Export of Mechanical and Electrical Products and the China Software Industry Association are responsible for coordinating and maintaining the order of software export operations.
3. The new policy of expanding and promoting the export of mechanical and electrical products
In order to promote the export expansion of mechanical and electrical products, the State Planning Commission, the Ministry of Finance, the People's Bank of China, the National Economic System Reform Commission, the Ministry of Foreign Trade and Economic Cooperation, the Ministry of Machinery Industry and the Ministry of Electronics Industry jointly drafted the Opinions on Further Expanding the Export of Mechanical and Electrical Products during the Ninth Five-Year Plan (hereinafter referred to as the original Opinions) at the end of 1996, and submitted it to the State Council for approval. With the end of the Ninth Five-Year Plan of the national economy, the Opinions on Further Promoting the Export of Mechanical and Electrical Products during the Tenth Five-Year Plan (hereinafter referred to as the New Opinions) jointly drafted by the Ministry of Foreign Trade and Economic Cooperation, the State Planning Commission, the State Economic and Trade Commission, the Ministry of Finance, the Ministry of Information Industry, the People's Bank of China, the General Administration of Customs, State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) and the General Administration of Quality Inspection and Quarantine (hereinafter referred to as the New Opinions) was officially promulgated and implemented on March 3, 2006 with the approval of the State Council. The new Opinions consist of "guiding ideology and objectives"; "continue to implement the strategy of winning by quality and promoting trade through science and technology, and vigorously adjust the structure of export products"; "Strengthen the construction of export production system of mechanical and electrical products and further optimize the structure of export enterprises of mechanical and electrical products"; "implement the strategy of' going out' and increase the intensity of international market development"; The Opinions include six parts and thirty-two articles, such as "optimizing the structure of export trade mode of mechanical and electrical products, realizing the diversification of trade mode" and "comprehensively using various economic means to further promote the export of mechanical and electrical products", which further points out the direction for promoting China's technology trade in the new period. At the same time, it also puts forward higher requirements for China's mechanical and electrical products export enterprises to correctly implement intellectual property protection and ensure the interests of both China and foreign countries. In fact, if we simply expand the export of mechanical and electrical products, it is only within the scope of trade in goods. In contrast, its effectiveness is still limited. Only by taking technology transfer as the main line and promoting the export of mechanical and electrical products can we achieve greater economic benefits.
To sum up, the national economic management department has timely compiled/revised policy documents that have important guiding role in technology introduction and technology export promotion, and pointed out the direction for carrying out the above related work. The next thing to do is how to make these programmatic policy orientations be seriously implemented.
Third, strengthen management to ensure the healthy development of technology trade.
1. Correctly implement policies and resolutely overcome the momentum of blind and repeated introduction.
In view of China's formal accession to the World Trade Organization, in order to further standardize the management of China's technology import and export, maintain the order of technology import and export, promote the healthy development of the national economy and society, and integrate with international practices, the relevant state departments have accelerated the pace of legislation. At present, a series of administrative regulations and departmental rules have been promulgated successively, such as Regulations on the Administration of Technology Import and Export in People's Republic of China (PRC), Measures for the Registration of Technology Import and Export Contracts, Measures for the Administration of Technologies Prohibited from Import and Restricted from Export, and Measures for the Administration of Technologies Prohibited from Export and Restricted from Export. At the same time, the Catalogue of Technologies Prohibited from Import and Export in China (the first batch), the Catalogue of Technologies Prohibited from Export and Restricted from Export in China, as well as the above-mentioned new Catalogue of Industries with Foreign Investment and Several Provisions for Guiding Foreign Investment have been issued one after another, and the management of technology import and export in China has entered a new historical period. In a sense, China's technology import and export management is no longer in the stage without legal basis. The main task at present should be how to strengthen management according to law and truly implement the existing policy orientation. Because China has been in the management mode of planned economy for a long time, although it is in the transition period, the influence of planned economy management mode still exists in various economic management departments and regions to a greater or lesser extent. They often do not carefully analyze the changes of domestic and international market demand and supply system according to the actual situation of their own departments/regions, proceed from reality, do what they can, and correctly choose the areas that may form their comparative advantages, but blindly introduce and build technical projects that will not play an economic role in the end for the local interests of their own departments/regions, which has caused great waste. What's more, in order to protect their own resources and environment, some western countries have taken advantage of the global and international industrial restructuring to export some projects with backward technology, serious resource consumption and serious environmental pollution to China, regardless of the consequences of serious damage to the resources and environment of technology importing countries.
2. Correctly grasp the principle of preventing the loss of prohibited and restricted export technologies.
Similarly, there are many traditional technologies in China, such as cloisonne, Shuang Mianxiu, craft ceramics, ginseng cultivation and Yunnan Baiyao. All of them are national treasures. Their technical products are sold all over the world, and their market sales are enduring. Therefore, some foreign businessmen always try their best to obtain these traditional technologies from China. If they are careless in management, they will get lost abroad. Non-nuclear materials and related technologies for nuclear materials, nuclear equipment and reactors under the jurisdiction of the Regulations of People's Republic of China (PRC) on Nuclear Export Control; Export the equipment, materials and related technologies listed in the Export Control List of Dual-use Nuclear Goods and Related Technologies listed in the Regulations of People's Republic of China (PRC) on Export Control of Dual-use Nuclear Goods and Related Technologies, the first-class chemicals listed in the Regulations of People's Republic of China (PRC) on the Administration of Controlled Chemicals that can be used as chemical weapons, the second-class chemicals that can be used for the production of chemical weapons precursors, and the third-class chemicals that can be used as the main raw materials for the production of chemical weapons, as well as their production technologies and special equipment.
Therefore, in the new historical period, we should not only manage the technology import and export according to law, but also strengthen the management according to law to ensure the healthy development of China's technology import and export.
For reference only, please learn by yourself.
I hope it helps you.