Judging from the development of American patent system, it has the following characteristics:
1. The American patent system is a mixture of provision law and case law. The patent system makes it possible for innovative products to obtain high profits by providing inventors with exclusive rights. American patent law is a federal law, which is enacted by Congress. Detailed rules for the implementation of the Patent Law and guidelines for examination shall be formulated by the Patent and Trademark Office. The provisions of the patent law are relatively broad, involving specific contents (including the scope of patent protection), which are often stipulated in the detailed rules. The Patent and Trademark Office usually drafts the implementation rules according to the needs of American economic and technological development and publishes them on the Internet to consult the opinions of the public, professional lawyers and agents, so as to determine the practicality and operability of the implementation rules. This makes the American patent system flexible and operable to a great extent.
2. The American patent system emphasizes that the patent is granted to the first patent inventor, not to the first patent applicant, that is to say, even if you register the patent first, you can't guarantee that you can get the patent right, which fully embodies the principle of fairness. The scope of patent protection in the United States is constantly expanding. For example, at present, some major countries and regions in the world are still arguing fiercely about whether genetic technology can be patented. The United States has entered the stage of how to grant patents, and proposed to give full patent protection to online business methods and genetic technology. Patent litigation in the United States is expensive, but the punishment for patent infringers is also great. Strict legal provisions and strict judicial system effectively protect the legitimate rights and interests of patentees, which fully embodies that the essence of the patent system is to stimulate innovation and promote technological progress.
3. Emphasize the combination of patents and standards. Standards originally belonged to the field of technical standardization, but the United States skillfully combined the patent system with technical standards, making it easier for standards to give full play to their technical advantages and occupy a strong position in intellectual property rights. Whoever has the right to formulate technical standards will have the initiative in the market. Therefore, some high-tech companies in the United States often make conventional things into international standards first, then set all the standard paths as patents for registration, and finally occupy the market. Moreover, due to the increasingly close relationship between patents and standards, developed countries and multinational companies are trying to turn patents into standards in order to obtain the greatest economic benefits. Therefore, standardization has become the highest form of patent technology pursuit. In addition, developed countries often set up technical barriers to trade for products from other countries by controlling internationalization standards.
4. Linking patents with trade is a remarkable feature of American patent policy. Patent trade occupies a considerable proportion in American foreign trade and plays an important role in preventing goods from other countries from entering the American market. The scope of patent protection is actually a problem of monopolizing the market. At present, many companies in developed countries are gaining the dominant position of patents, which makes it difficult for new companies and researchers to enter, especially curbing the space for technological innovation in developing countries. To this end, the United States vigorously develops patent trade and uses this strategy to prevent goods from other countries from entering the American market, thus facilitating the occupation of foreign markets by American goods. According to the statistics of the United States Patent and Trademark Office, the revenue from patent transfer has been one of the fastest growing profit sources for IBM. In 2000, IBM's total profit was $8 1 billion, and patent transfer accounted for $654,380+0.7 billion. More and more companies realize that patents have begun to appear as a commodity in the international trade market. Especially in recent years, some developed countries have vigorously promoted the internationalization of patent examination, breaking the geographical restrictions of patent examination. A few countries are responsible for patent examination and patent granting, while others only need to recognize the examination results. This situation will greatly inhibit the innovation ability of developing countries, and even pose a threat to their national economic security because of excessive dependence on foreign patented technology.
5. The principle is that whoever invests will benefit. The United States is allowed to apply for patents for genetic information and enterprise software, and areas that were not previously protected by patents, such as mathematical problem solving, computer software, cryptography and decoding human genetic genes, are becoming patents one after another. Intellectual property management helps to encourage private enterprises to increase investment in R&D and innovation, but it also has negative effects. In the short term, R&D may be used for projects with low social benefits, thus reducing its productivity and affecting the investment efficiency of R&D; In the long run, even if strengthening intellectual property management will not reduce the productivity of R&D, too extensive intellectual property rights may stifle the next wave of business innovation. For example, the patent right of gene technology basically belongs to the patent right of basic scientific knowledge. Although this knowledge can be used as the basis for further research, the rights of the original patent holder will hinder the further use of this technology.
The American patent system emphasizes encouraging innovation and promoting technological progress, and holds that excessive patent protection will lead to monopoly. Therefore, when the United States establishes a protection system, it imposes restrictions on legislation. Paragraph 8 of Article 1 of the American Constitution stipulates that "Congress has the right to promote the development of science and technology by giving authors exclusive rights to their works and inventions for a limited time. This shows that the protection of intellectual property rights was considered in the drafting of the American Constitution, but its purpose is not to protect but to promote the development of science and technology, and this trend has been continuously strengthened in the era of knowledge economy. There is also a phenomenon in the protection of patents: on the one hand, the phenomenon of intellectual infringement is more serious, on the other hand, the trend of monopoly is getting faster and more serious, and monopoly patents are just like monopoly commodities. For example, Microsoft has formed a monopoly position in such a short time, which shows that the conflict between personal interests and social interests is getting worse and worse in the field of knowledge. While emphasizing the protection of intellectual property rights, the United States also emphasizes the restrictions on the abuse of patent strategies. 1In May 1998, the US government sued Microsoft in the dock, which is an example. The US government believes that if a successful person abuses his rights, national laws should intervene to safeguard the interests of the public, society and consumers. "
(2) Characteristics of other intellectual property fields
1. The government actively participates in the formulation of intellectual property rules. Due to the development of digital communication and network technology, it not only has a great impact on the creation, storage, dissemination, distribution and payment to the public, but also brings new opportunities and challenges to the creators and users of intellectual property rights, and also has a wide impact on international business. To this end, the US RAND Corporation proposed to Congress: "The United States must ensure that it finds ways to maintain the integrity of goods produced and circulated in this environment." As a result, the United States raised the issue of the original product protection standard and realized that it was also a powerful challenge to the domestic market of the United States. Since the United States realized the importance of this rule, it began to actively strive to establish a new level of consistency in international copyright protection. Taking copyright as an example, because the copyright industry in the United States has made great contributions to the current trade income of the United States, improving the protection of copyright will help reduce their losses and improve the balance of payments. American copyright legislation stipulates some rights that other countries may think are new, such as the right to rent computer programs, sound recordings and music works in sound recordings. The United States has established a royalty system for blank digital recording media and digital tape recorders. All the benefits obtained from these rights can be obtained in accordance with the principle of national treatment. The United States believes that this is in line with their obligations under the Berne Convention and other international intellectual property and trade treaties and related agreements.
2. Special emphasis is placed on government intervention in intellectual property standardization. The United States believes that the government can play an important role in signing internationally coordinated standard agreements. However, experts from RAND believe that the United States currently regards standards as an end, and regards this end as a technical means for industries to obtain benefits, rather than as an integral part of national trade strategy. Therefore, American international trade negotiators and federal agencies should do the following two things: first, any standard to ensure international status must be open and transparent, not a means to protect the market; Second, help and support the private sector to coordinate and comply with the requirements of American and non-American evaluation agencies. Americans believe that the domestic intellectual property system in the United States is dual, overlapping or even matching, which is easy to increase the cost of participants and users. From the perspective of global market challenges, this system is not satisfactory. In order to meet this challenge, American industrial departments, government agencies and American standard-setting institutions must take concerted action, further develop new relationships with organizations such as the International Organization for Standardization and the International Electronic Technology Commission, and establish new standard procedures.
Rand company's suggestion on the strategic transformation of intellectual property rights under the new form
Intellectual property is a profound legal field, which has undergone subtle changes with the change of technology. Technological progress will affect the operation and effectiveness of intellectual property rights, especially copyright law. The change of technology has produced new industries and new methods of copying and disseminating works, which may provide new opportunities for authors, but it also brings many challenges. At the beginning of 2000, RAND submitted a report on promoting technological innovation, strengthening intellectual property protection and standardization to the US government. Put forward the following suggestions:
1. The government should provide a good public policy environment for innovation activities, establish a coordination system among industrial departments, research institutions and the government, and determine how they interact. We should support the development of new products, new processes and new services from various policy perspectives.
2. The federal government supports local governments to overcome obstacles to the free flow of information and data. Inter-agency coordination of technical standards and agreements requires federal governments at all levels. The federal government should oppose the legislation of the new intellectual property database, because such legislation is not conducive to the academic community and researchers to obtain the information they need for research and education projects. In the private sector, more and more attention is paid to the protection of invention secrets, and there are more and more lawsuits against stealing trade secrets, which is not conducive to companies benefiting from relaxing restrictions and implementing exemption regulations, and may limit the flow of personnel and technical information.
3. Formulate intellectual property policies conducive to innovation. Possession of intellectual property rights has become a common concern, and the ownership and management of R&D products pose a challenge to new technologies within the existing patent system. Who owns the research results funded by the federal government? According to the report, not only individual inventors, but also universities should own the intellectual property rights of research results. In this way, the inventor can negotiate with the company as a legal person, and the university can also have the right to share part of the benefits when signing the contract. Only by simplifying the patent system, eliminating unnecessary costs and reducing the uncertainty in the process of innovation can innovation be improved.
4. Standardization of standards. The report emphasizes that the federal government should actively participate in international and domestic standard-setting activities as soon as possible. As a convener, government can play an important role in the field of standardization, especially in the field of information technology. The establishment of national market will increasingly rely on national business standards, which can be formulated through cooperation with industrial sector standards organizations. At the same time, the Federation can also provide financial support for the local use of this standard. If the industrial sector cannot reach an agreement in time, the federal government must avoid taking the lead in promulgating such standards.
arouse
1. The government plays a very important role in the intellectual property strategy. The government is not only a maker of public policies, but also an intervener, and also assumes the role of a negotiator. For example, at the end of 20001,the American government proposed to reform its current patent system, so that it can not only further promote technological innovation, but also protect the intellectual property rights of innovative technologies. At the same time, the U.S. government also applies domestic laws to the international community through legislation (such as the implementation of "Special 30 1").
Since intellectual property has become one of the focuses of fierce global competition, the international community has never been so keen on using patents, trademarks and copyrights to safeguard its own interests. As a measure, intellectual property rights have been directly linked with comprehensive national strength, scientific and technological competition and economic trade, and have become an important weapon to improve the national scientific and technological economic competitiveness, a "killer weapon" for multinational companies in international investment and trade, and an important means for developed countries to deal with political, economic and trade issues between countries.
It is not enough to have a competitive advantage in the market just by developing high technology. Only by having an effective patent strategy can we finally form our own unique competitive advantage in the market. This is why some economic and technological powers in the world are also patent powers and powers. According to the materials published by the World Intellectual Property Organization, among the 38,906 international patent applications received in 1995, the United States ranked first, followed by Germany, Britain, Japan and France. Obviously, an economic and technological power must be a patent power and a power. The United States is a big technology exporter with the most high-tech patents, but it still spends a lot of money to introduce patented technology from other countries every year. After World War II, Japan introduced more than 20,000 patented technologies in more than 20 years. On this basis, after continuous digestion, absorption, development and innovation, it has changed the backward technology and become a technological and economic power second only to the United States.
3. From the perspective of national economic security, China should avoid over-reliance on American patented technology. The United States is the largest creator and owner of intellectual property rights in the world at present, and is the research and development center of new products. Its policy trend will inevitably strengthen rather than weaken the protection of intellectual property rights. For China, the United States has always regarded the issue of intellectual property rights as an inducing factor for the rising trade friction between China and the United States. In addition, a noteworthy new trend is that developed countries, represented by the United States, are vigorously advocating the introduction of technical standards for their products into the market. This way of taking a trade siege war against China in terms of intellectual property rights and standards will bring us more and more pressure in the future.
4. The government of China should attach importance to the overall strategic utility of patents while attaching importance to technological innovation, and formulate and strengthen the science and technology plan and intellectual property management system. Inventions and patents alone cannot occupy the market, and the overall control ability of the government, scientific research departments and enterprises on patent strategy should be strengthened. We must study the legal problems of intellectual property brought by the development of new technologies in many aspects, and create a good environment for China's scientific and technological innovation activities and the promotion of enterprise product competitiveness through the government's support for intellectual property strategy.