Keywords: intellectual property rights; Minimum protection standards; TR IPS
I. Formation of ratchet mechanism for international protection of intellectual property rights
The international protection mechanism of intellectual property rights originated from the Paris Convention for the Protection of Industrial Property signed by 1883 and the Berne Convention for the Protection of Literary and Artistic Works signed by 1886. Prior to this, there was no international standard for intellectual property protection, and regionality was one of its most remarkable characteristics. The Paris Convention and the Berne Convention laid the foundation for the formation of the international intellectual property protection system, the core content of which is to stipulate the minimum standards that countries should abide by when formulating their own intellectual property laws, and to provide foreign nationals with the main qualifications for obtaining rights and protection, which, to a certain extent, broke the original legal protection limited by the borders of one country and one place and improved the level of protection.
1970, the World Intellectual Property Organization (W IPO) was formally established. International treaties managed by WIPO constitute the main content of multilateral international protection of intellectual property rights. However, the defects of IPO in law enforcement make developed countries dissatisfied, and trade conflicts caused by intellectual property protection also occur from time to time. Therefore, developed countries hope to use the dispute settlement mechanism of GATT to protect intellectual property rights more effectively. For the first time, the Uruguay Round negotiations successfully made specific new provisions in the form of international treaties on the implementation of intellectual property rights, the procedures for obtaining and maintaining intellectual property rights, and the prevention and settlement of disputes. This is the Agreement on Trade-related Aspects of Intellectual Property Rights.
TR IPS itself is a global agreement to improve intellectual property protection, which sets the minimum standards for intellectual property protection for all member countries, provides a compulsory dispute settlement mechanism, and greatly protects the interests of intellectual property rights holders. So far, bilateral treaties and multilateral treaties have emerged one after another, and the ratchet mechanism for preventing reversal in the field of international protection of intellectual property rights has been formed: First, the ratchet mechanism for international protection of intellectual property rights has been formed on the basis of the minimum protection standard clauses in bilateral and multilateral intellectual property treaties. Take the TR IPS Agreement as an example, its article 1 paragraph 1 stipulates: "Members shall put the provisions of this Agreement into effect. Members may, but are not obliged to, implement in their domestic laws broader protection than that required by this Agreement as long as they do not violate this Agreement. " This can be considered as a typical performance of "minimum standards". In fact, since the Paris Convention, every bilateral or multilateral intellectual property protection treaty contains similar provisions.
Therefore, the parties to the treaty can provide broader and more favorable protection without deviating from the treaty, and subsequent treaties will naturally establish higher protection standards.
Secondly, the operation of the ratchet mechanism of international protection of modern intellectual property rights depends on the transfer of negotiation venues. Looking back on the development of international protection of intellectual property rights in recent years, we can see that the negotiation venue for promoting intellectual property rights protection in developed countries has moved between W TO and W IPO. After TR IPS, their goal is to achieve the highest standard of intellectual property protection in the world, the most representative of which is the "global patent system" advocated by the United States and Japan. W IPO signed the Patent Law Treaty (PLT) in June 2000. In May, 200 1, the draft substantive treaty of patent law (SPLT) was first discussed. In August 2006, the Director-General of WIPO announced a proposal called "WIPO Patent Agenda". Since then, the Standing Committee of W IPO Patent Law has repeatedly discussed the revision of SPLT. The international intellectual property protection forum has returned to WIIPO, which is trying to create an international patent legal framework and further improve the level of international intellectual property protection. Developed countries first make use of the different advantages of W IPO and W TO to establish negotiation venues in forums with fewer obstacles and easy success. After successful negotiations, W TO members can accept the knowledge and standards reached in multilateral agreements according to Article 7 1 of TR IPS Agreement. [ 1]
Second, the impact of the ratchet mechanism of international protection of intellectual property rights on developing countries.
The ratchet mechanism of international protection of intellectual property rights is playing an increasingly important role. Taking the patent field as an example, WIIPO not only initiated the PCT reform, but also used PLT to coordinate and unify patent applications and national and regional patents. The revision of the SPLT draft is discussed repeatedly, trying to unify some legal principles of patent authorization and effectiveness in various countries, such as the definitions of existing technology, novelty, creativity (non-obviousness) and industrial practicability, the characteristics of full disclosure, the structure and interpretation of the claims, etc. The goal is to finally establish a unified international patent law. It can be seen that the international protection of ratchet teeth in the field of patent law has been pushed from formal standard to substantive standard, and the scope of protection is getting wider and wider, and the national interests involved in patents will be greatly adjusted or redistributed.
However, the ratchet action makes the protection standard improve again and again, and the new regulations under the ratchet mechanism are very unfavorable to developing countries. Generally speaking, the higher the degree of patent protection, the greater the institutional benefits brought by technological innovation, and the smaller the institutional benefits brought by technology use (diffusion), and vice versa. Therefore, the degree of patent protection is not always as high as possible, but there is an optimal degree or point of protection according to the situation of each country, at which its institutional benefits are maximized. The determination of this optimal point depends on the specific technical innovation and technical use of the system.
The United States, Japan and the European Union, which actively advocate the establishment of a global patent system, have a higher level of economic and technological development, more investment in high-tech research and development, and a strong demand for patent protection, so their best protection degree is higher. In contrast, the optimal level of protection in developing countries is low. The conflict of interest between them is obvious. Many developing countries do not grant patent protection to special objects such as animal and plant varieties and human genes according to their own traditions, religions, ethics or public interests; The United States believes that everything in the world can be patented. The world agricultural system promoted by the United States actually makes farmers become tenant farmers and pays a lot of money for seeds, plant varieties, fertilizers and pesticides protected by patents. After TR IPS Agreement came into effect, it was restricted for members to imitate innovative products by reverse engineering and other methods, which set obstacles for developing countries to catch up with developed countries in technology. It can be predicted that if the global patent law is signed, developing countries will be subject to stricter rules than W TO, but it is beneficial to patentees in the United States, Japan and Europe.
Three. Countermeasures of developing countries
From a historical point of view, developed countries were not affected by patent protection in the early stage of industrialization, and gradually established strong scientific and technological competitiveness through replication and imitation. Now, they try to replace international standards with domestic standards and call for the establishment of a strong patent system, which is obviously unfair to developing countries. The further advancement of ratchet mechanism will block the development throat of developing countries. Therefore, developing countries should:
First, make careful analysis, make full use of the flexibility allowed by the existing system, and strive for flexible space. The pace of intellectual property protection does not allow any retrogression in the degree and scope of protection. However, at present, this system still gives Members more flexibility. For example, TR IPS is recognized as a protocol with wide coverage, high standards and strict requirements. However, it still allows weak protection different from gene sequences, transgenic plant varieties, new plant varieties, computer software and business method patents. Articles 13, 17, 26 and 30 of TR IPS Agreement list restrictions or exceptions on copyright, patents, trademarks and industrial designs. Articles 8 and 27 on "compulsory licensing" are all important flexible provisions, which give member States the right to control the abuse of intellectual property rights and maintain the balance between private rights and domestic public interests.
Second, actively advocate and strive to expand the "knowledge sharing space". Most countries in the world recognize that intellectual property is a kind of private right, mainly the property right of intellectual products. However, the ideological field, in the words of economists, is not as antagonistic as the tangible field. "What's special about it is that no one has less because others have it." [2] On the one hand, the existing system recognizes that intellectual property is a limited monopoly, and we should give property owners enough control to stimulate their creation; On the other hand, what they create will eventually fall into the public domain. Therefore, we should allow and encourage direct investment in public domain knowledge products. Open source, or free software, is code that settles down in the public domain. The Public license spread by open source software enables anyone else to access its resources without anyone's permission, such as the open system like L inux and the innovation based on L inux. In addition, there are works whose copyrights have been declared in the form of "creative enjoyment". [3] The state should show the value of knowledge commons, so that scientists and technicians can realize: "Only when we-people in universities-resist the temptation and refuse to collect large royalties from patents, can we resist the closure." [4] The expanded knowledge sharing space will expand the system benefits brought by technology diffusion.
Third, strengthen cooperation with other developing countries, conclude framework treaties, show developing countries' own positions and viewpoints on important issues, and strive to eliminate the imbalance of interests between developed and developing countries. Developing countries should actively participate in and control the international agenda of patent law coordination according to their own conditions, especially for unreasonable clauses. The "IPO Development Plan" put forward by Brazil, Argentina and other countries is a good example. The failure of global trade negotiations in September 2003 also proved that it is feasible for developing countries to say "no".