(A) the characteristics of intellectual property protection system in China
1. China's intellectual property law construction started late, but the starting point is high and the development is fast.
China took the lead in promulgating the Trademark Law in 1982, which was the first step of intellectual property protection in China. 1984, I passed and promulgated the patent law, which clearly stipulated the protection of invention-creation patents, and established a patent office with a review system and strict review benchmarks in accordance with international standards. The legal procedure of patent protection adopts international practice as far as possible, which makes China's industrial property protection system quickly enter the ranks of modern international industrial property protection [2]. Practice has proved that the intellectual property legal system established in China in ten years is basically the same as that established in developed countries in two hundred years, and is basically consistent with the provisions and spirit of contemporary intellectual property protection treaties, which can be called a late start, a high starting point and rapid development.
2. Implement a single patent protection system for inventions.
China adopts a single patent protection system, that is, three patents of invention, utility model and design are protected in one patent law at the same time. Richard Boggart, Director-General of the United Nations Intellectual Property Organization (WIPO), once spoke highly of China's patent law, which is a very good law, because it concentrates on the most sensible schemes commonly adopted in the contemporary era.
3. Protect intellectual property rights as comprehensively as possible.
According to the relevant laws and regulations of intellectual property rights in China, the same intellectual labor achievements can be protected by different laws [3].
4. Combination of administrative treatment and judicial trial.
In order to effectively protect intellectual property rights, according to China's national conditions, all intellectual property management organs can also handle intellectual property disputes except the people's courts. The main purpose of administrative mediation of intellectual property disputes is to solve related disputes including infringement in a timely and effective manner and further strengthen intellectual property protection.
5. Focus on international cooperation
Since its establishment, China's intellectual property system has attached great importance to extensive multilateral and bilateral cooperation with the International Intellectual Property Organization and Germany, Japan, the United States and France in the fields of patents, trademarks and copyrights.
(B) Analysis of the current situation of intellectual property protection system in China.
1. The demand and protection of intellectual property rights by enterprises cannot be perfectly unified.
The carrier of intellectual property rights mainly lies in companies and enterprises, which need to use new technologies, absorb new achievements and make new creations in technological innovation, product renewal and service improvement. Companies and enterprises are often the subjects of intellectual property protection, and all the work of enterprises can not be separated from knowledge as a form of property rights. However, some small and medium-sized enterprises and private enterprises do not have high requirements for intellectual property rights; There are also some knowledge-intensive enterprises that need a lot of intellectual property rights. These enterprises attach great importance to the protection of science and technology and intellectual property rights, and even regard patent application as the basis of their sustainable development. As a result, the demand and protection of intellectual property rights of Chinese enterprises could not be completely unified before, resulting in a serious imbalance.
2. Different enterprises have different ways to protect intellectual property rights.
Because enterprises attach different importance to intellectual property rights, the methods and forms of intellectual property protection will also present diversity. Some enterprises regard the protection of intellectual property rights as their lifeline. They attach great importance to the protection of intellectual property rights of enterprises, intensify scientific and technological innovation, apply for patents in time, protect trademarks and protect product formulas. Some enterprises have increased the breadth and depth of cooperation with scientific research institutes, relying on scientific research institutes to carry out scientific and technological innovation or directly purchasing patents from these units. Of course, there are still many small and medium-sized enterprises that have low requirements for science and technology. Their awareness of intellectual property protection is not strong. Not only did they not apply for patents in time for scientific and technological innovation, but they even copied other people's inventions and stole other people's knowledge.
3. There is a blind spot in intellectual property protection, and there is no intellectual property protection system in China.
China's industrial development level, industrial structure, industrial quality and awareness of intellectual property protection are in a state of decreasing from east to west. In the more developed cities in the east, the protection of intellectual property rights also shows differences among industries. People often think that in terms of intellectual property protection, they apply for invention patents more, but do not dig deep and expand the connotation of intellectual property protection. From the subject of intellectual property protection, only companies and enterprises often pay more attention to it, while universities and research institutes pay less attention to it, even forming a blind spot of intellectual property protection.
(C) Problems in China's intellectual property protection system
1. The low-level operation of domestic intellectual property rights
Mainly manifested in: (1) weak awareness of rights. For many people, the word intellectual property is in a state of little knowledge. When it comes to intellectual property rights, many people think that it only refers to all kinds of patents, and they know little about other things contained in intellectual property rights, such as copyright, trademark rights and trade secrets. They will not use legal weapons correctly or even accidentally to protect their intellectual achievements, resulting in many intangible assets suffering undue losses. (2) Low level of industrialization. In China, many enterprises and individuals are keen to declare scientific and technological achievement awards, instead of applying for patents for their important scientific and technological achievements in time. Because scientific and technical personnel don't care about the development and utilization of scientific and technological achievements, many achievements appraisal are shelved after winning the prize, or foreigners apply for patents first. Therefore, although there are many scientific and technological personnel in China, the development and utilization of scientific research results are quite backward. (3) Low management level. Most enterprises in our country only set up part-time institutions and part-time staff to manage intellectual property affairs, and the proportion of enterprises with specialized institutions and full-time staff is low, or even some enterprises do not. Due to the neglect of the management and protection of intellectual property rights and the lack of effective incentives and constraints for scientific and technological developers, business secrets and proprietary technologies of enterprises are often taken away by scientific and technological personnel, which not only leads to the loss of intellectual property rights of enterprises, but also leads to the loss of market sales share of enterprises.
2. The protection and application of intellectual property rights are unbalanced, and the ability and level of enterprises to master and apply intellectual property rights for scientific and technological innovation are insufficient.
Generally speaking, China's investment in scientific and technological innovation and R&D is low, and the total R&D expenditure is only one thirtieth of that of the United States and one eighteenth of that of Japan, which is far behind some developing countries. In this way, the protection and utilization of intellectual property rights are unbalanced. Some enterprises unilaterally pursue immediate interests and ignore long-term interests, seize current vested interests, lack long-term interests, and ignore the awareness of relying on scientific and technological knowledge competition, thus their ability to use intellectual property rights is extremely low; Some enterprises only pay attention to the application of knowledge and technology and ignore the protection of knowledge and technology, and even try to steal others' knowledge, technology and patents; Other units (especially universities and research institutes) emphasize the application and protection of knowledge, technology and patents, but do not attach importance to transforming these technologies into real productive forces.
3. The intellectual property protection system is not perfect, and the investment in scientific and technological innovation and research is insufficient.
New institutional economists attach great importance to the role of institutions in economic and social development and think it is the key to economic growth [5]. The system of laws and regulations is scattered, there is a lack of organic integration between laws and regulations, and even there are conflicts between the contents of laws and regulations, restrictions on responsibilities and management departments. Patent law, trademark law and copyright law are different in the scope and intensity of judicial and administrative protection.
Three. Suggestions on Strengthening Intellectual Property Protection in China
(A) the popularization of intellectual property education, strengthen the awareness of protection
First of all, we should educate the whole society about intellectual property rights deeply, persistently and effectively, and realize that intellectual property protection is the need of developing its own science and technology and national culture, and it is also the international obligation that China, as a responsible member of the international community, must fulfill, and it is the basis of normal exchanges and trade between countries. If China wants to enjoy its due position in the world, it must rejuvenate the country through science and technology, and intellectual property protection is the lever to develop science and technology; Focus on leading cadres and students from universities, middle schools and colleges who are about to take up their jobs, so that they can deeply understand the content, relevant legal provisions and operation methods of intellectual property rights and reduce blindness in their work; Third, in the form of education, it is necessary to regularly crack down on all kinds of piracy and counterfeiting, and form a social trend of respecting intellectual property rights.
(B) improve the legal system of intellectual property protection
A perfect legal system provides a reliable guarantee for intellectual property protection, and it is also an important guarantee to ensure intellectual property protection. On the one hand, we should increase the compensation for infringement damages, learn from American experience, introduce punitive damages, and eradicate the chronic disease of "low compensation". On the other hand, we should further improve the rules of evidence, appropriately reduce the burden of proof of the plaintiff, and introduce certain rules of inversion of burden of proof to solve the problem of "difficulty in proof".
(3) Enterprises should establish a sound intellectual property management system and be good at using intellectual property rights to protect and develop themselves.
In a sense, the competition of modern enterprises is essentially the competition of intellectual property rights. Therefore, enterprises should be familiar with the new knowledge of intellectual property rights, learn more from the successful experience of excellent enterprises at home and abroad in the protection and application of intellectual property rights, establish their own intellectual property management system as soon as possible, timely apply to the relevant departments at home and abroad for the intellectual property registration of new achievements, new technologies, new inventions and new ideas independently developed by enterprises, and build their own intellectual property creation, management, implementation and protection measures system. When the related rights and interests of independent intellectual property rights are infringed, we should be good at using legal weapons to maintain and actively deal with the cross-border knowledge.
(4) Strengthen unified management and further strengthen law enforcement.
Intellectual property rights in China are jointly managed by the Copyright Bureau, the Patent Office and the Administration for Industry and Commerce. However, there are problems of dispersion and poor coordination ability in actual operation. The state should set up a special intellectual property coordination agency to co-ordinate the legislative and law enforcement work of various departments and reduce the confusion in management. At present, piracy and counterfeiting of trademarks are still serious, and law enforcement departments should strengthen the crackdown and innovate means to make a new situation in the protection and utilization of intellectual property rights in China.