the term "intellectual property" is constantly appearing in newspapers, from the patent dispute between Langke and Huaqi on USB flash drive to the recent trademark dispute between Danone and Wahaha. At present, the importance of intellectual property is increasingly prominent, and together with trade in goods and services, it constitutes the three pillars of the World Trade Organization (WTO). At present, the reform and development of the world intellectual property system has entered an unprecedented active stage, and the status of intellectual property in the world economy, science and technology and trade has been upgraded historically, and it has become a crucial factor to promote a country's economic development. Strengthening the intellectual property system has become an inevitable choice for all countries in the world to develop science and technology, economy and enhance national strength. With the development of science and technology and the acceleration of economic globalization, the protection and management of intellectual property rights has become a key factor for an enterprise and even a country to gain an advantage in the competition.
in international scientific and technological cooperation, the implementation of intellectual property management is an important content to raise awareness of intellectual property protection, strengthen intellectual property management, safeguard national interests, promote independent innovation capability and protect Chinese innovation achievements. In order to clarify the handling principles and management measures of intellectual property issues involved in international scientific and technological cooperation projects, properly handle relevant intellectual property matters, protect the legitimate rights and interests of all parties involved in cooperation according to law, promote the development of China's international scientific and technological cooperation and exchange, and promote the construction of national innovation system, the Ministry of Science and Technology has studied and formulated the Interim Provisions on Intellectual Property Management of International Scientific and Technological Cooperation Projects.
Nowadays, the process of economic globalization is further accelerated, and the relations between countries are inextricably linked through trade and cooperation. Some economically powerful countries occupy a powerful role or even monopolize the development of industries through the strong advantages of intellectual property rights, so how to protect the interests of their own countries in the process of international cooperation has become the first problem that governments of all countries have to face. The particularity of intellectual property system in international scientific and technological cooperation also requires the national government to participate in it, formulate corresponding management rules and regulations, and effectively protect the interests and security of the country while observing international treaties. In the management measures of Several Provisions, the Ministry of Science and Technology has made the following provisions on the management of some intellectual property rights in international scientific and technological cooperation:
The scope of application of the Interim Provisions
Intergovernmental international scientific and technological cooperation projects listed under intergovernmental international scientific and technological cooperation agreements (including protocols) signed by the Ministry of Science and Technology on behalf of the China Municipal Government and other foreign governments or international organizations, and organized and implemented by the Ministry of Science and Technology; International scientific and technological cooperation projects listed under the inter-departmental scientific and technological cooperation agreement (including protocol) signed by other relevant departments of the State Council and foreign government departments and the inter-provincial international scientific and technological cooperation agreement (including protocol) signed by the provincial people's government and foreign state governments; National scientific research plans and other international scientific and technological cooperation projects funded by government financial funds. The management and protection of intellectual property rights of other international scientific and technological cooperation projects not included in this scope can be implemented with reference to these Provisions.
The principle requires that
the management and protection of intellectual property rights should be comprehensively strengthened in international scientific and technological cooperation agreements, negotiation of agreements, application and establishment, organization and implementation, evaluation and acceptance, supervision and inspection of international scientific and technological cooperation projects.
in dealing with the intellectual property issues of international scientific and technological cooperation projects, we should follow the principles of equality and mutual benefit, respect for agreements and keeping promises, and abide by China's relevant intellectual property laws and regulations, as well as international conventions or bilateral treaties on intellectual property protection signed by China or its cooperating countries.
Intellectual property management responsibilities of the project management department of international scientific and technological cooperation
Relevant departments in the State Council, provincial people's governments and institutions authorized or entrusted by them to be responsible for project organization, implementation and management (hereinafter referred to as "project management departments") should take effective measures to guide and encourage enterprises, research institutes and universities to participate in international scientific and technological cooperation, properly handle intellectual property relations with other partners and intellectual property issues arising in the process of cooperation, and accelerate the formation of scientific research achievements with independent intellectual property rights.
intellectual property management responsibilities of international scientific and technological cooperation project undertakers
international scientific and technological cooperation project undertakers should attach importance to and strengthen intellectual property work, establish and improve intellectual property management systems, increase investment in intellectual property work, set up internal intellectual property management institutions, equip intellectual property management personnel, formulate intellectual property protection strategies and programs for international scientific and technological cooperation research results, carry out intellectual property education and capacity training, improve the ability and level of handling intellectual property affairs involved in international scientific and technological cooperation projects, and effectively safeguard our legitimate rights and interests.
requirements on intellectual property rights in signing agreements and negotiating cooperation projects
1. The relevant units responsible for intergovernmental international scientific and technological cooperation agreements or inter-departmental and inter-provincial international scientific and technological cooperation agreements and international scientific and technological cooperation projects shall, according to the specific conditions of the fields and projects to be carried out in international scientific and technological cooperation, study and put forward the negotiation principles and specific plans on intellectual property rights by themselves or entrust intellectual property intermediaries and experts as one of the reference bases for negotiating and determining intellectual property rights issues involved in international scientific and technological cooperation.
2. When signing an intergovernmental international scientific and technological cooperation agreement or an inter-departmental or inter-provincial international scientific and technological cooperation agreement, we should make prior arrangements for the intellectual property issues involved in international scientific and technological cooperation in accordance with the requirements of these Provisions, and reach an intellectual property clause or a special intellectual property agreement through consultation with foreign partners, so as to ensure that China can effectively grasp and reasonably share the cooperative research results and their intellectual property rights and interests.
Requirements on intellectual property rights in the application for international scientific and technological cooperation projects
For international scientific and technological cooperation projects that must master independent intellectual property rights or have clear technical indicators, the applicant for international scientific and technological cooperation projects should specify the specific objectives of intellectual property rights to be achieved by the project in the project proposal, including the types, quantities and acquisition stages of intellectual property rights that can be obtained through research and development, and attach the basis for intellectual property retrieval and analysis.
requirements on intellectual property rights in the process of project establishment
1. The project management department should take the establishment of intellectual property management system, the establishment of intellectual property working institutions and the allocation of funds for intellectual property work as important indicators for selecting and determining international scientific and technological cooperation projects and project undertakers, and clearly stipulate the specific objectives, protection methods, ownership and sharing of rights belonging to the Chinese part and management responsibilities of the project undertakers in the task book or project contract signed with the project undertakers.
2. when signing a project cooperation agreement with a foreign cooperative unit, the project undertaker shall set up a special clause on intellectual property rights in the project cooperation agreement in accordance with these regulations or both parties shall sign a special intellectual property agreement separately, and make specific agreements on intellectual property rights ownership, rights distribution, liability for breach of contract, dispute settlement and other intellectual property matters involved or generated in the cooperation, and report them to the project management department for the record according to the original project application channels.
Requirements on intellectual property in project organization and implementation
During the organization and implementation of international scientific and technological cooperation projects, the project undertaker should earnestly perform the following intellectual property management responsibilities:
1. Establish and improve the intellectual property management system of the unit, set up a special intellectual property working institution, equip with specialized personnel or entrust an intellectual property intermediary service agency to take charge of the intellectual property management of the project;
2. Carry out intellectual property knowledge education and ability training to improve the intellectual property awareness and management level of scientific and technological personnel and scientific and technological management personnel involved in project implementation;
3. In strict accordance with the relevant provisions of the Law on Guarding State Secrets, strengthen the confidentiality management of foreign scientific and technological cooperation to ensure that the state scientific and technological secrets and the technical secrets of the unit are not damaged;
4. fulfill the protection procedures such as application, registration and registration of intellectual property rights in time, so that various forms of research results produced in various stages of project implementation can be protected in time, accurately and effectively;
5. Take other necessary intellectual property management measures.
related intellectual property rights are included in the budget of international scientific and technological cooperation projects, and related intellectual property affairs fees are included in the budget, which are used for the patent application and other intellectual property affairs that China needs to pay during the research and development of the project.
requirements on intellectual property rights in project acceptance
when organizing project acceptance, the project management department shall, as necessary, recruit intellectual property experts or entrust intellectual property intermediaries to evaluate the intellectual property management and protection of the project based on the intellectual property objectives and management responsibilities agreed in the task book, project contract or cooperation agreement.
Who owns the research results produced by international scientific and technological cooperation projects and the intellectual property rights formed by them
The research results produced by international scientific and technological cooperation projects and the intellectual property rights formed by them belong to the Chinese side. Unless otherwise agreed in the task book, project contract or cooperation agreement, the project undertaker can decide to implement and license them independently according to the provisions on the intellectual property rights of the research results of national scientific research projects.
under certain circumstances, the state reserves the right to use, develop, make effective use of and obtain benefits free of charge according to needs.
XIV. The ownership of relevant intellectual property rights shall be determined in accordance with the agreement of the parties in the cooperation agreement for the research results of international scientific and technological cooperation. The right to apply for patents and other intellectual property rights generally belongs to the cooperative parties, and can be handled in accordance with the following principles:
1. The cooperative units of all parties apply for patents on behalf of all the partners in their own territory and license others to exploit the patents after obtaining the patents, and the economic benefits obtained therefrom shall be distributed according to the proportion agreed in the agreement.
2. When applying for a patent, the ranking of the achievers shall be determined according to their contributions. When it is difficult to distinguish the contribution, if you apply for a patent in your own territory, you can apply for a patent in a third country with your own achievements as the first finisher, which will be decided by both parties through consultation, or with the achievements of the party who bears the patent application fee and maintenance fee as the first finisher.
3. If one of the partners renounces the right to apply for a patent, the other party may apply separately or jointly by other parties. After the achievement is granted a patent right, the party who gives up the right to apply for a patent can exploit the patent for free.
4. if one of the parties does not agree to apply for a patent, the other party or other parties shall not apply for a patent if there are sufficient reasons.
5. When any partner transfers the patent application right or the patent right owned by * * * to a third party, it shall notify the other partners, and the other partners shall have the priority to be assigned.
6. If any partner enters into a patent exploitation license contract with a third party, it shall obtain the consent of other parties in advance, and the standard of patent royalties shall be determined by all partners. The economic benefits arising therefrom shall be reasonably shared by all parties to the cooperation according to the provisions of the agreement.
7. When determining the share ratio of patent royalties, we should take into account such factors as manpower, funds, instruments, equipment, intelligence materials and other material conditions provided by all parties in cooperation.
management of intellectual property achievements
after the research achievements produced by international scientific and technological cooperation projects have obtained relevant intellectual property rights, they should report the relevant information of the obtained intellectual property rights to the project management department in writing within one month after receiving the patent certificate, registration certificate of new plant variety rights, software registration certificate, trademark registration certificate and other confirmation documents.
In today's increasingly close international scientific and technological cooperation, the word intellectual property should always be placed in an important position. Although the international protection of intellectual property rights is becoming more and more perfect, the application of intellectual property rights system will also cause inequality because of the imbalance of scientific and technological level between countries. Therefore, we must emphasize the positive role of the government to protect national interests and security in the process of international scientific and technological cooperation.
Extended reading
Intellectual property, the strategic resource of a country's core competitiveness
Since the 21st century, with the acceleration of the process of world economic globalization and the rapid development of science and technology, as a basic legal system to encourage and protect innovation and promote the progress and economic development of human society, the status of intellectual property system in economic and social activities has been historically promoted, and intellectual property protection has been widely concerned by the international community, making our society an era of knowledge economy.
in the era of knowledge economy, intellectual property rights, as a strategic resource for an enterprise and even a country to improve its core competitiveness, have shown unprecedented importance. The rule that "only with intellectual property rights can we have international status and dignity" has been fully verified in the IT industry: in today's information age, without intellectual property rights often means nothing. On the contrary, having a core technology can make you rich in the world.
What is intellectual property
Intellectual property refers to the exclusive rights enjoyed by citizens or legal persons and other subjects in intellectual creation or innovation activities according to the provisions of the law, also known as "intellectual achievement right" and "intangible property right", which mainly includes industrial property rights composed of invention patents, trademarks and industrial designs, natural sciences, social sciences and literature, music and drama. Due to the rapid development of global science and technology and economy, the scope and content of intellectual property protection are constantly expanding and deepening, which constantly puts forward new topics for intellectual property legal system and theoretical research.
characteristics of intellectual property rights
intellectual property rights, whether copyright or industrial property rights, have many similarities. The characteristics of intellectual property rights are mainly manifested in the following three aspects:
exclusivity: exclusivity is also called monopoly or exclusivity. It means that the owner of intellectual property has the right to implement, possess, benefit from and dispose of the objects of his rights (such as patents and registered trademarks). If others want to enjoy this right, they must obtain the consent of the owner of intellectual property. This exclusivity is guaranteed by law. China's patent law stipulates: "after the patent right is granted, no unit or individual may manufacture, use, promise to sell, sell or import its patented products for production and business purposes without the permission of the patentee;" Nor shall it use its patented method. " The act of exploiting another person's patent without the permission of the patentee is an infringement and should be punished by law. The same is true of copyright and registered trademark rights, which cannot be used without the permission of the obligee. This is stipulated in China's copyright law and trademark law.