Propaganda slogan of intellectual property column of court

Editor's Note: In order to implement the spirit of "Decision of Central the State Council on Implementing the Outline of Science and Technology Planning to Enhance Independent Innovation Capability" (Zhong Fa [2006] No.4) and "Outline of National Medium-and Long-Term Science and Technology Development Plan (2006-2020)", the Ministry of Science and Technology has studied and formulated the Regulations to further strengthen the management and protection of intellectual property rights in international scientific and technological cooperation and safeguard the intellectual property rights of all partners.

From the U-disk patent dispute between Lang Ke and Huaqi to the recent trademark dispute between Danone and Wahaha, the word "intellectual property" keeps appearing in newspapers. At present, the importance of intellectual property rights 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 rights in the world economy, science and technology and trade has been historically upgraded, which has become a key factor to promote a country's economic development. Strengthening the construction of 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, enhance independent innovation capability and protect China's 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 related intellectual property matters, protect the legitimate rights and interests of all parties in cooperation according to law, promote the development of international scientific and technological cooperation and exchanges in China, 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 inseparable through trade and cooperation. Some economic powers occupy a strong position and even monopolize the development of industries through the strong advantages of intellectual property rights, so how to protect their own interests 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 national interests and security while observing international treaties. In the "Several Provisions" management measures, 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:

Scope of application of interim provisions

Intergovernmental international scientific and technological cooperation projects listed in the intergovernmental international scientific and technological cooperation agreement (including protocol) 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 in inter-departmental scientific and technological cooperation agreements (including protocols) signed by other relevant departments of the State Council and foreign government departments and inter-provincial international scientific and technological cooperation agreements (including protocols) signed by provincial people's governments and foreign governments; National scientific research plans and other international scientific and technological cooperation projects funded by government financial funds. Intellectual property management and protection of other international scientific and technological cooperation projects not included in this scope can be implemented with reference to these provisions.

Principle requirement

We will comprehensively strengthen the management and protection of intellectual property rights in international scientific and technological cooperation agreements, agreement negotiations, application, organization and implementation, evaluation and acceptance, supervision and inspection of international scientific and technological cooperation projects.

Dealing with the intellectual property rights of international scientific and technological cooperation projects should follow the principles of equality and mutual benefit, respecting agreements and keeping promises, and abide by China's laws and regulations on intellectual property rights, as well as international conventions or bilateral treaties on intellectual property protection signed by China or cooperative countries.

Intellectual property management responsibilities of international scientific and technological cooperation project management department

Relevant departments of the State Council, provincial people's governments and their authorized or entrusted institutions responsible for project organization, implementation and management (hereinafter referred to as "project management departments") shall take effective measures to guide and encourage enterprises, research institutes and institutions of higher learning to participate in international scientific and technological cooperation, properly handle intellectual property issues arising from intellectual property relations and cooperation with other partners, and accelerate the formation of scientific research achievements with independent intellectual property rights.

International scientific and technological cooperation projects undertake the intellectual property management responsibilities of the unit.

The undertaking units of international scientific and technological cooperation projects should attach importance to and strengthen intellectual property work, establish and improve the intellectual property management system, 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 earnestly safeguard China's legitimate rights and interests.

Requirements for intellectual property rights when 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 related to intellectual property rights by themselves or by entrusting intellectual property intermediaries and experts as one of the reference bases for determining the intellectual property 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, prior arrangements shall be made for the intellectual property issues involved in international scientific and technological cooperation in accordance with the requirements of these Provisions, and intellectual property clauses or special intellectual property agreements shall be reached through consultation with foreign parties to ensure that China can effectively grasp and reasonably share the cooperative research results and their intellectual property rights and interests.

Intellectual property requirements in the application of 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 intellectual property objectives 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.

Intellectual property requirements 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 intellectual property working funds 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 partner, the project undertaker shall, in accordance with these Provisions, set up a special clause on intellectual property rights in the project cooperation agreement or both parties shall sign a special intellectual property agreement separately, and make specific agreements on intellectual property rights, rights distribution, liability for breach of contract, dispute resolution 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.

Intellectual property requirements in project organization and implementation

The project undertaker shall earnestly perform the following intellectual property management responsibilities in the process of organizing and implementing international scientific and technological cooperation projects:

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 institution to be responsible for 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 security management of foreign scientific and technological cooperation, and ensure that the state scientific and technological secrets and the technical secrets of the unit are not damaged;

4. Timely perform the protection procedures such as application, registration and registration of intellectual property rights, so as to timely, accurately and effectively protect various forms of research results produced in various stages of project implementation;

5. Take other necessary intellectual property management measures.

Relevant intellectual property rights are included in the budget of international scientific and technological cooperation projects, and relevant intellectual property affairs fees are included in the budget, which are used for intellectual property affairs fees such as patent applications that China needs to pay in the project research and development process.

Intellectual property requirements in project acceptance

When organizing the project acceptance, the project management department should, according to the needs, hire intellectual property experts or entrust intellectual property intermediaries to evaluate the management and protection of intellectual property rights 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 are owned by the Chinese side, unless they involve national security, national interests and major social interests, and unless otherwise agreed in the task book, project contract or cooperation agreement, according to the Provisions on the Ownership of Intellectual Property Rights of Research Results of National Scientific Research Projects, the project undertaker may decide to implement, license others to implement and transfer them, and acquire the corresponding benefits at a fixed price according to law.

In some cases, the state reserves the right to use, develop, effectively use and obtain benefits free of charge according to needs.

Fourteen, international scientific and technological cooperation research results, according to the cooperation agreement between the partners to determine the ownership of relevant intellectual property rights. The right to apply for patents and other intellectual property rights generally belongs to the parties to the cooperation and can be handled according to the following principles:

1. The cooperative units of all partners apply for patents on behalf of all partners in their respective territories, and after obtaining the patents, they are allowed to be implemented by others, and the economic benefits thus obtained are 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 contributions, 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 party waives 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 giving up the right to apply for a patent can exploit the patent for free.

4. If one partner does not agree to apply for a patent, the other party or other parties may not apply for a patent if there are sufficient reasons.

5. When any partner transfers the patent application right or patent right owned by * * to a third party, it shall notify the other partners, who have the priority to be assigned.

6. When concluding a patent licensing contract with a third party, any of the partners shall obtain the consent of the other parties in advance, and the standards of patent royalties shall be jointly determined by the partners. The resulting economic benefits shall be reasonably shared by all parties to the cooperation according to the agreement.

7. When determining the proportion of patent royalties, we should consider the material conditions such as manpower, funds, instruments, equipment and information provided by the partners.

Management of intellectual property achievements

After the research results produced by international scientific and technological cooperation projects have obtained relevant intellectual property rights, they should report the relevant information of intellectual property rights to the project management department in writing within one month after receiving the confirmation documents such as patent certificate, registration certificate of new plant variety rights, software registration certificate and trademark registration certificate.

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 levels between countries. Therefore, we must emphasize the positive role of the government in protecting national interests and security in the process of international scientific and technological cooperation.

Extended reading

Intellectual Property Rights —— Strategic Resources of National Core Competitiveness

Since 2 1 century, with the acceleration of the globalization of the world economy 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 upgraded historically, and intellectual property protection has attracted extensive attention from the international community, which has made our society an era of knowledge economy.

In the era of knowledge economy, intellectual property, as a strategic resource to improve the core competitiveness of an enterprise and even a country, shows an unprecedented important position. The law 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, no intellectual property rights often means nothing. On the contrary, having a core technology can make you rich.

What is intellectual property?

Intellectual property refers to the exclusive rights enjoyed by citizens or legal persons in intellectual creation or innovation activities, 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, literature, music, drama, painting, sculpture, photography and film photography. 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 the legal system and theoretical research of intellectual property.

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:

Suitability: Suitability 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 its rights objects (such as patents and registered trademarks). If others want to enjoy this right, they must obtain the consent of the intellectual property owner. 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 implementing 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 may not be used without the permission of the obligee. This is stipulated by China's copyright law and trademark law. For the infringement of intellectual property rights, the obligee may bring a lawsuit to the people's court or request the intellectual property management department to mediate.

Regionality: the regionality of intellectual property rights is a kind of restriction to the obligee. It means that the intellectual property rights granted by any country and region are exclusive only in that country and region, but not in other countries and regions, that is, they are not protected by law.

Timeliness: Timeliness means that intellectual property protection is limited by time. Exceeding the prescribed time will no longer be protected by law. According to China's patent law, the protection period of invention patent right is 20 years, and that of utility model and design patent is 10 year. After their respective years, it will no longer be called a patent and will not be protected by the patent law, thus becoming public property. China's trademark law stipulates that the validity period of a registered trademark is 10 years, but it can be renewed for ten years before its expiration, and it can be renewed all the time. If the renewal formalities are not handled before the expiration, the registered trademark right will automatically become invalid. This is different from the protection period of patent right. The term of protection of copyright is complicated, and its right to modify, sign and protect the integrity of the work is not limited by time, but the right to use, publish and get remuneration of the work is the author's life and 50 years after his death.

Internationalization of intellectual property rights

Intellectual property plays an increasingly important role in international trade today, and the quantity and quality of patent rights owned by enterprises is a sign of innovation ability. Due to the development of international economic and cultural exchanges, the legal relationship of intellectual property rights has become increasingly international, which is mainly manifested in the existence of a large number of foreign-related factors in subject, object and content.

The subject of the legal relationship of intellectual property rights refers to those who enjoy rights and assume obligations according to the intellectual property law, including individuals, collectives, legal persons, partnerships, etc. Judging from international contacts, there are both China people and foreigners. It is very common that foreigners enjoy intellectual property rights in China and China people enjoy intellectual property rights in foreign countries.

The object of intellectual property legal relationship: refers to the object that the rights and obligations between the subjects of intellectual property relationship point to.

Intellectual property rights are divided into two categories: one is industrial property rights, including patent rights (invention patents, utility model patents and industrial designs); Trademark rights (trademarks, service trademarks and manufacturing trademarks).

Industrial property right is a broad concept, which includes not only industry and commerce itself, but also agriculture, mining and transportation. The other is copyright, also known as copyright, which mainly includes the author's exclusive rights in literature, art, music, photography, film, television and computer software, and the neighboring rights derived from it.

The laws protecting intellectual property rights are mainly domestic legislation (patent law, trademark law and copyright law) and international treaties.

International convention for the protection of intellectual property rights

Intellectual property, as a kind of spiritual wealth and intellectual achievement, is fluid. It can flow in many ways at home and abroad, and science, technology, culture and art have no national boundaries. Especially since the19th century, due to the development of capitalist commodity economy and communication, the global exchange of science, technology, culture and art has been promoted, and various newspapers, magazines, international academic conferences, scholars' visits, international expositions, television, radio, books and materials, satellite technology and computer internet have appeared, making it easy for an intellectual property right obtained in one country to spread abroad. The fluidity and regionality of intellectual property rights are contradictory, especially for western industrialized countries, strict regionality is very unfavorable to them. Because, on the one hand, they want to send their advanced science, technology, patented products, trademark goods and literary works abroad to occupy the international market. On the other hand, I am worried that these intellectual achievements are not protected by law in the host country, or even used for free, thus increasing my competitors in the international market. Therefore, these rights they hope to obtain in their own country can also be protected by relevant foreign laws. In this way, the international protection of intellectual property rights has emerged. Today's world is an era of knowledge economy, and the international protection of intellectual property rights is very important. In addition to protecting foreign-related intellectual property rights through domestic laws, some countries and international organizations have also signed and formulated many international conventions on intellectual property protection.

Internationally, since 1980s, western developed countries have taken a series of important measures to strengthen the creation, management, application and protection of intellectual property rights, so as to consolidate their powerful position in the world economy. The development trend of international intellectual property system is mainly manifested as follows: intellectual property is becoming a strategic resource for countries to enhance their national economy, scientific and technological strength and international competitiveness, and safeguard their own interests and economic security; The internationalization trend of intellectual property system is accelerating, and intellectual property protection has become an important content of scientific, technological, economic, trade and cultural cooperation and exchanges among countries; With the rapid development of information technology, life science, marine technology, new material technology and other high-tech, countries have strengthened the legislative work of intellectual property rights, the scope of intellectual property protection has been continuously expanded, and the level and intensity of protection have been continuously enhanced; Intellectual property rights are becoming an important means for enterprises in various countries to gain market competitive advantage; With the rapid increase in the number of applications or registrations for intellectual property rights, mastering and controlling intellectual property rights in key fields and cutting-edge technologies has become the focus of competition among countries.