1. What is the scope of intellectual property protection?
The scope of intellectual property protection includes: copyright and related rights, patents, industrial copyrights, trademarks, trade names, marks of origin, trade secrets, and various rights to oppose and stop unfair competition.
civil law
Article 123 Definition of Intellectual Property Rights Civil subjects enjoy intellectual property rights according to law.
Intellectual property rights are the exclusive rights enjoyed by the obligee to the following objects according to law:
(1) works;
(2) Inventions, utility models and designs;
(3) Trademarks;
(4) Geographical indications;
(5) Business secrets;
(6) Layout design of integrated circuits;
(7) New plant varieties;
(8) Other objects prescribed by law.
Article 444 Where the establishment and transfer of intellectual property pledge are restricted, intellectual property pledges such as the exclusive right to use a registered trademark, patent right and copyright shall be established at the time of pledge registration.
After the pledge of property rights in intellectual property rights, the pledgor may not transfer or license others to use them, unless the pledgor and the pledgee agree through consultation. The pledgor shall pay off the debts in advance to the pledgee or deposit the price for transferring or allowing others to use the pledged intellectual property rights.
Purpose of concluding a technology contract The conclusion of a technology contract should be conducive to the protection of intellectual property rights and the progress of science and technology, and promote the research, development, transformation, application and popularization of scientific and technological achievements.
Second, what is the object of intellectual property protection?
The object of patent protection refers to the object of patent protection, that is, inventions and creations that can be protected by patents. According to Article 1 of the Paris Convention, the object of patent protection only refers to inventions, while utility models and designs are the objects of industrial property protection alongside inventions. Therefore, most countries only regard inventions as the object of patent protection, and make separate laws parallel to the patent law to protect utility models and designs. The objects protected by China's patent law are inventions, utility models and designs, which are collectively called inventions in China's patent law. It should be noted that in China's patent law, although utility models and designs can be protected, and the word "patent" is added later, they cannot be recognized as patents mentioned in the Paris Convention.
(1) invention
The concept of invention, that is, what is an invention, is not defined in international intellectual property conventions. Only a few countries directly define invention in the patent law, but their expressions are different. In order to fully understand the essence of the present invention, the following examples are given:
Article 2 of the Detailed Rules for the Implementation of China's Patent Law stipulates that "invention" as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement.
According to Article 10 1 of the United States Patent Law, patentable inventions refer to novel and useful manufacturing methods, machines, finished products, combinations of substances or novel and useful improvements thereof.
Article 2 of the Japanese Patent Law stipulates that invention refers to a high-level technological creation made by using the laws of nature.
Article 1 12 of the Model Law on Inventions in Developing Countries, which was formulated under the auspices of the United Nations World Intellectual Property Organization (WIPO), stipulates that invention is an idea of inventors and can solve a specific problem in the technical field in practice.
As can be seen from the above definition, invention is the inventor's technical idea, and it is a new technical scheme or technical conception that can solve specific problems in the technical field by using natural laws. Inventions can be divided into product inventions and method inventions, and their corresponding patents are usually called product invention patents and method invention patents respectively.
(2) utility model
The utility model is also a technical idea or technical scheme of people, commonly known as "small invention". There is no essential difference with invention. However, it is different from the present invention in the following aspects:
First, the utility model is limited to the invention of the shape, structure or combination of products, that is to say, it can only be the new design of machines, equipment, devices, appliances, daily necessities and other products, so the invention of technological methods can not be protected by the utility model patent; Second, utility models are generally not as creative as inventions. Taking the provisions of China's patent law as an example, inventions should have outstanding substantive features and remarkable progress, and utility models should have substantive features and progress; Third, in the way of protecting utility models, some countries protect them by registration or registration; The patent protection of utility model in China is essentially a way of registration, because although the patent law of our country stipulates the patentability conditions that utility model should have, it also stipulates that the application for a patent for utility model is only subject to preliminary examination (formal examination), without patentability examination, and the patent for utility model can be granted only through formal examination. Whether they meet the patentability conditions is generally resolved in patent infringement disputes; Fourth, the term of legal protection of utility models is much shorter than that of inventions.
(3) Design
China's patent law also regards design as the object of patent protection. Regarding what is a design, Article 2 of the Detailed Rules for the Implementation of the Patent Law of our country stipulates that the design mentioned in the Patent Law refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products. The Course of Intellectual Property Law, edited by the World Intellectual Property Organization, points out: "Industrial product design belongs to the aesthetic field, but at the same time it is used as the pattern of industrial or handicraft products. Generally speaking, industrial design is the decoration or aesthetic appearance of useful items. The appearance of decoration can be composed of the shape and/or pattern and/or color of the article. The decorative or aesthetic appearance must be visually attractive. " The protection of design is to prevent others from copying the same or similar projects. In terms of protection methods, most countries adopt the registration system or the registration system. The way stipulated in China's patent law is actually the registration system, which requires the applicant to submit pictures or photos of the articles representing the design, indicating the products used in the design.
There are many forms of patents, but no matter which one, as long as it is applied through the State Patent Office, it has legal effect. For patent applications, management fees are paid annually and charged on a case-by-case basis. Small and low-profit enterprises generally reduce or exempt a lot of taxes, and the management fee is paid once a year, and the patent office does not issue invoices and receipts.
Third, the criminal law protection of intellectual property rights must strictly follow the general principles of criminal law.
The principle of criminal justice refers to the general rules that should be generally observed in the process of criminal justice, including a legally prescribed punishment for a crime, the adaptation of crime and punishment, and the absence of suspicion. These principles run through criminal justice and embody the basic spirit and soul of China's criminal rule of law. Intellectual property rights are intangible property rights. Different from tangible property rights, the right boundaries of patents, trademarks, copyrights and trade secrets are often unclear and relatively unstable. Therefore, compared with ordinary criminal cases, the criteria for judging crime and non-crime in intellectual property criminal cases are special and relatively complicated. Nevertheless, intellectual property criminal cases still belong to the category of criminal justice, and the general principles of criminal justice must be strictly observed. China implements a dual-track law enforcement mode in which judicial protection and administrative protection coexist. There are three ways of judicial protection: civil, administrative and criminal protection, and criminal justice that deprives people of their freedom and property is the most severe and expensive one. Therefore, when the protection of intellectual property rights requires the use of criminal means, we must adopt stricter judicial standards and accurately grasp the boundaries of criminal protection.
At present, the most controversial field of criminal protection of intellectual property rights is the criminal protection of copyright. Article 2 17 of China's criminal law stipulates that copying and distributing written works, music, movies, TV, video works, computer software and other works for profit without the permission of the copyright owner constitutes a crime of copyright infringement. The understanding of the scope of "other works" is directly related to the scope of criminal law protection of copyright, which is controversial in both theoretical and practical circles. One view is that the types of works protected by criminal law clearly listed in Article 2 17 of China's criminal law are too narrow, and the acts of infringing copyright are constantly being refurbished, which can no longer meet the judicial needs of the continuous development of copyright protection content. Therefore, all kinds of protected works stipulated in China's copyright law and laws and administrative regulations should be included in the scope of protection of "other works" in criminal law. Specifically, in addition to the written works, music, movies, TV and video works and computer software works explicitly listed in Article 217 of the Criminal Law, it should also include oral works, drama works, folk art works, dance acrobatics works, art works, architectural works, engineering design drawings, product design drawings, maps, schematic drawings and other graphic works and model works as stipulated in Article 3 of China's Copyright Law. On the other hand, only works similar in nature and harmful consequences to those explicitly listed in the Criminal Law can be included in the scope of protection of the Criminal Law. In this regard, the author believes that the understanding of "other works" should adopt a more restrictive interpretation position. On this issue, we must first solve the problem of judicial authority, that is, to clarify the interpretation authority of judicial decisions for such criminal laws.
Bottom clause is a common legal expression in legal texts, mainly to prevent possible irregularities in the process of law making and the constant change of social situation after law making, and to maintain the relative stability of law. The bottom clause is purely a technical issue of legislation, leaving room for legal interpretation institutions to interpret the law. The legal interpretation organs only include the national legislature and the highest judicial organ, and do not include the judicial institutions that handle specific cases. The highest judicial organ may, within the scope authorized by law, make judicial interpretations on the application of legal provisions and report them to the National People's Congress for the record and examination. Whether the scope of criminal law protection of copyright needs to be modified or expanded with the development of economy and society should be solved through legislative interpretation or judicial interpretation. Prior to this, when a judge tried a case, he arbitrarily included works not explicitly listed in the criminal law provisions into the scope of criminal law protection and convicted and sentenced him, which violated the principle of a legally prescribed punishment for a crime and exceeded the jurisdiction of criminal justice. Therefore, strictly following the principle of legally prescribed punishment for a crime and not arbitrarily expanding the application of criminal law is one of the boundaries of criminal protection.
Legal objectivity:
People's Republic of China (PRC) Civil Code
Article 123
Civil subjects enjoy intellectual property rights according to law.
Intellectual property rights are the exclusive rights enjoyed by the obligee to the following objects according to law:
(1) works;
(2) Inventions, utility models and designs;
(3) Trademarks;
(4) Geographical indications;
(5) Business secrets;
(6) Layout design of integrated circuits;
(7) New plant varieties;
(8) Other objects prescribed by law.
People's Republic of China (PRC) Civil Code
Article 127
If the law has provisions on the protection of data and network virtual property, those provisions shall prevail.
People's Republic of China (PRC) Civil Code
Article 130
Civil subjects exercise their civil rights according to their own wishes without interference.
People's Republic of China (PRC) Civil Code
Article 132
Civil subjects shall not abuse their civil rights to harm national interests, social public interests or the legitimate rights and interests of others.