However, the increasing competitiveness of China's foreign trade and the sharp increase in the export of new technology products have caused panic in western developed countries, and some countries even listed China as the key target of implementing trade protectionism. After China's entry into WTO, foreign discriminatory practices against China have been difficult to achieve results. However, in terms of intellectual property rights, China is still a relatively weak country, and the ownership of independent intellectual property rights and the awareness of intellectual property protection need to be improved. In recent years, intellectual property cases in foreign trade have emerged one after another, and the name of intellectual property protection has increasingly become another new protectionist excuse for western economic powers to curb China's exports.
A few days ago, Professor Prof Shen, Dean of the School of Law of the University of International Business and Economics and doctoral supervisor, was interviewed by a reporter on intellectual property rights in foreign trade.
Reporter: In recent years, intellectual property disputes in China's foreign trade have been filled with smoke and even intensified. Its scope has begun to expand from traditional industries such as lighters and zippers to high-tech industries such as biopharmaceuticals and digital chips. There are more and more industries and departments involved in disputes, and foreign enterprises or organizations demand more and more patent fees, license fees and compensation. Can you tell us about the areas where intellectual property disputes in China's foreign trade are mainly concentrated? What are the characteristics? What do you think of this?
Prof Shen: Since China joined the WTO, the intellectual property issues in the trade friction between China and other countries have obviously increased, and more and more China enterprises have been involved in international intellectual property disputes. These disputes mainly focus on mechanical and electrical products, high-tech products and other fields; It is also reflected in the dispute with trading partners about the right to formulate technical standards. Trading partners accuse China of export infringement of intellectual property rights, and overseas enterprises infringe intellectual property rights of China enterprises. These international disputes over intellectual property rights are often aimed at leading domestic enterprises in certain fields, with clear goals and careful planning. The result of the lawsuit, whether it is a judgment or a settlement, has an extremely adverse impact on the sales and market prospects of the sued enterprise, causing great shock in the whole industry.
At present, intellectual property disputes in China's foreign trade have the following characteristics besides the expansion of the scope and scale you just mentioned: First, the frequency of occurrence is getting higher and higher, for example, the United States International Trade Commission (ITC) has made more and more "Section 337" investigations against China; Second, the influence is growing. Foreign enterprises often form industrial alliances to file intellectual property lawsuits against the whole industry or leading enterprises in China, which has a growing impact on the development of related industries in China and even poses a threat to the economic security of some industries; Third, the means are becoming more and more strategic, prohibiting other countries' products from entering the domestic market on the grounds of intellectual property infringement litigation, and building a new means of intellectual property barriers from the judicial level. The intervention of state public power, which does not belong to the administrative level, as well as the characteristics of complex intellectual property litigation procedures, high requirements for proof and expensive litigation costs, make it difficult for ordinary small enterprises to win the case. At present, "Section 337" in the United States has become the most economical and time-saving legal way for China enterprises to prevent competitors from entering the American market.
I believe that intellectual property disputes will become another hot issue in the field of international trade after anti-dumping litigation. In the next few decades, intellectual property rights will become a powerful weapon for countries to participate in international market competition.
Reporter: After China joined the WTO, the protection of trade-related intellectual property rights was put on the legislative agenda. In order to fulfill the promise of joining the WTO, and at the same time to better enter the international market, China has successively revised the Trademark Law, Copyright Law and Patent Law, and according to the requirements of the TRIPS Agreement, newly formulated special administrative regulations such as the Regulations on the Protection of Computer Software and the Regulations on the Protection of Integrated Circuits. In 2003, the State Council revised the Regulations on Customs Protection of Intellectual Property Rights, and the General Administration of Customs announced the new implementation measures. The new "Regulations" and "Implementation Measures" better provide a border protection system for intellectual property rights holders. In April 2004, a notable feature of the newly revised Foreign Trade Law was the addition of a special chapter on intellectual property protection system related to foreign trade. All these reflect the determination and sincerity of our government to strengthen the protection of intellectual property rights. However, some people think that some countries abuse intellectual property protection because of some legal "blind spots". What's your opinion and suggestion? In addition, at present, foreign criticism of intellectual property protection in China has shifted from "legislation" to "enforcement". What do you think of this?
Prof Shen: Under the background of knowledge economy, the protection of intellectual property rights in China's foreign trade is no longer the protection of civil rights in the general sense, but has involved the country's overall development strategy and major national interests.
Intellectual property is essentially a private right. In a sense, intellectual property itself is a legal monopoly and exists as an exception to the application of the general anti-monopoly law. However, the exclusive right of intellectual property often makes its owner form a monopoly or dominant position in a specific market, which limits the competition in this market. Especially in some cases, the intellectual property rights holder may abuse his exclusive rights obtained according to law and illegally restrict competition through improper exercise of intellectual property rights, which constitutes a violation of the anti-monopoly law.
In view of the trend of abuse of intellectual property protection in some countries, I think it is urgent to formulate anti-monopoly legislation as soon as possible, amend the anti-unfair competition law, patent law, copyright law and trademark law, take into account the abuse of intellectual property rights by foreign enterprises, strengthen and improve the regulations restricting the abuse of intellectual property rights as soon as possible, prevent the abuse of intellectual property rights, and further improve the intellectual property protection system in foreign trade.
As far as the judicial protection of intellectual property rights is concerned, because China is in the transition stage of market economy, there are many crises and contradictions that need to be solved more urgently, and criminal acts such as counterfeiting, piracy and infringement are rampant in some fields. After China's entry into the WTO, China has intensified its crackdown on counterfeiting and piracy, and the number of foreign-related intellectual property cases has continued to increase. However, the international community pays more attention to law enforcement while paying attention to the establishment of intellectual property rules. The legal environment for judicial protection of intellectual property rights in China needs to be greatly improved. The law enforcement system and working mechanism of intellectual property protection, especially the connection of relevant law enforcement procedures, need to be improved and perfected; The timeliness, effectiveness, fairness and transparency of judicial procedures and relief measures still need to be improved, and the cost of litigation rights protection is still high. The problems of unbalanced development of judicial protection of intellectual property rights and different levels of law enforcement still exist; The contradiction between heavy work tasks and insufficient law enforcement resources in some places is still outstanding; Wait a minute. Therefore, we should fully understand the importance of judicial protection of intellectual property rights in foreign trade, seriously study and take practical measures to further comprehensively strengthen the trial of intellectual property rights.
Reporter: At the end of 2005, General Motors and Chery reached a settlement agreement. This three-year intellectual property dispute seems to have finally come to an end. However, this does not mean the end of intellectual property disputes among China enterprises in international trade. At present, many enterprises in China are entering a period of rapid development, gradually expanding their markets from home to abroad, and have made great achievements, occupying a considerable share of the international market, and some even become "predators" in international production and sales in this field. However, when these enterprises talk about the newly opened international market, the intellectual property disputes caused by them often suddenly appear, which makes them unprepared and even hurt their vitality. In this regard, can you give enterprises some suggestions on how to deal with international intellectual property disputes and protect their own economic interests? Or make some suggestions?
Prof Shen: In the face of complex intellectual property disputes, enterprises should establish a complete and effective intellectual property strategy system, strengthen the application and protection of their own intellectual property rights such as patents and trademarks, pay close attention to the changes of intellectual property rights such as patent applications and trademarks of foreign enterprises, master the main principles and provisions of the TRIPs Agreement, understand the laws and regulations related to intellectual property rights in exporting countries and their typical cases, and collect relevant information, so as to avoid losses caused by intellectual property infringement disputes while protecting their own intellectual property rights.
Enterprises in China should base themselves on their own scientific and technological research, strengthen their awareness of intellectual property rights, face up to the advantages of developed countries in economy, science and technology and intellectual property rights and the enormous pressure they bring us, develop leading industries, technologies and products with independent intellectual property rights as soon as possible, change the passive situation in intellectual property rights and take the road of independent innovation.
Our government should play a leading role, guide enterprises to increase scientific and technological innovation and crack down on infringement of intellectual property rights; Establish consultation mechanisms and dispute settlement mechanisms for intellectual property protection with other countries; Our government should also speed up the establishment of an early warning system for intellectual property rights, conduct dynamic monitoring and make long-term preparations for prevention in advance.
China should speed up the construction of a special legal service platform. The government's foreign trade and economic cooperation departments, judicial administrative departments and institutions of higher learning should strengthen cooperation, strive to train a group of specialized legal talents who understand international trade and intellectual property rights, and provide effective legal advice for enterprises to enter the international market; It is necessary to establish a platform for legal consultation and legal aid in foreign-related litigation, help enterprises dare to respond to lawsuits, be good at responding to lawsuits, and try their best to safeguard the interests of enterprises in China.