Looking at the "Great Protection" of Intellectual Property Rights through the TRIPs Agreement"




Release time:2016-08-01

At present, the cross-integration of information technology, biotechnology, new energy technology, and new material technology is triggering a new round of technological revolution and industrial transformation, which will bring new opportunities to the development of human society. The use of new materials and the gradual digitization of the manufacturing industry have brought about tremendous changes in the industry. The promotion of 3D printing technology and easy-to-use robots and network cooperation services has gradually moved large-scale production to personalized customized products, and the manufacturing industry no longer needs a large amount of cheap labor. This will allow some jobs that have been transferred to developing countries to return to developed countries. The emergence of this new material and new technology will bring many challenges to my country's status as a traditional manufacturing country, and it also makes us realize that we need to continue to increase investment in intellectual property protection, which is also necessary to stand out in the fierce international competition. condition.


The protection of intellectual property rights is a complex system engineering, which objectively requires us to construct the working pattern of "great protection" of intellectual property rights. The concept of "great protection" of intellectual property rights was first put forward in April 2016. This work pattern is clear. The inter-ministerial joint meeting system for the implementation of the intellectual property strategy of the State Council will be established to further improve the overall coordination mechanism for intellectual property protection, strengthen the linkage of intellectual property protection at the national and local levels, and speed up the construction of a protection model with complementary advantages and organic connection between administrative and judicial channels, we will deepen regional and international cooperation in intellectual property protection. In fact, the concept of "great protection" of intellectual property rights echoes the principles of intellectual property protection in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). Together, the two provide a solid foundation for creating a legal environment that protects the interests of patentees and stimulates invention enthusiasm and creativity.


The opening basic principle of the TRIPs Agreement states that "it is important to note that intellectual property rights are private rights". The agreement embodies the basic purpose, specific methods and discretion of protecting the private right of intellectual property in a number of articles in its body. Article 1 of the TRIPs Agreement on the Nature and Scope of Obligations expressly affirms that Members are free to exercise more extensive protection within the scope of the Agreement than required by the Agreement (provided that such protection does not conflict with the terms of the Agreement); Members are also free to determine, within the limits of their respective legal systems and practices, the appropriate means of implementing the provisions of the Agreement. This shows that the "great protection" of intellectual property rights is established within the scope allowed by the TRIPs agreement, and the TRIPs agreement allows members to develop specific protection measures at their discretion.


Article 7 of the TRIPs Agreement defines the objectives of the Agreement, namely that the protection and enforcement of intellectual property rights shall contribute to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual benefit of producers and users of technological knowledge, and shall be carried out in a manner conducive to social and economic welfare and to a balance of rights and obligations. The purpose of establishing the "great protection" mechanism of intellectual property rights is to effectively crack down on and punish the infringement of patent rights, which is in line with the objectives set out in Article 7 of the TRIPs Agreement.


Article 41 (1) of the TRIPs Agreement sets out the obligations of the Agreement in general. Members shall ensure that their relevant laws provide for enforcement procedures (enforcement procedures) as provided for in this Part to provide for effective deterrence measures against any infringement of intellectual property rights referred to in this Agreement, including prompt remedies to stop the infringement (Remedies) and remedies to prevent further infringement. The "enforcement procedures" and "remedies" mentioned in this article include administrative protection procedures, judicial protection procedures and other appropriate protection procedures. In other words, Article 41 of the TRIPs Agreement covers the construction of the "great protection" mechanism of intellectual property rights. The protection model of complementary and organic connection between the two channels of administration and justice.


Article 49 of the TRIPs Agreement makes it clear that when administrative procedures apply to intellectual property cases, the procedures are subject to the principles and purposes set out in the Agreement. This article shows that the TRIPs Agreement clearly gives equal status to administrative protection and judicial protection.


At present, many internationally renowned intellectual property research institutions have also conducted in-depth research on the discretionary power of members under the TRIPs agreement when establishing the patent system. The Declaration on Patent Protection-Regulatory Sovereignty under the TRIPs Agreement, issued by the German Mark Planck Institute for Innovation and Competition in 2014, states that, as a framework regulation of the innovation market, the patent system should be compatible with the innovation process it serves and the competitive environment in which it operates. The declaration emphasizes that new technologies and business practices are challenging the traditional balance of patent protection developed during the industrial revolution, and that sovereign states should maintain the discretion to formulate patent systems that match their technological capabilities and social, cultural and economic needs and development priorities. The declaration also emphasizes that Articles 7 and 8 of the TRIPS Agreement recognize that the patent system is rooted in a framework of policy controls, and within the boundaries of these provisions, members should have a high degree of discretion to regulate innovation markets while pursuing public interest objectives.


Look back at home. In 2015, the State Intellectual Property Office accepted 1.102 million applications for invention patents, ranking first in the world for five consecutive years. A total of 359000 invention patents were authorized, of which 263000 were domestic invention patents. This set of data not only shows that China already has a large number of patents, but also means that there is a large group of patentees in China's patent system. Such a large group is bound to face the problem of how to effectively protect their legitimate rights and interests. A patentee with two patents and a senior professional title wrote an article entitled "the survival crisis of the patentee" based on his own experience. The article mentions that its first patent has a simple design and a broad market, so hundreds of companies have imitated it since it was put on the market. This infringement has seriously damaged its interests. The author also pointed out in the article that letting patentees go to court will form a kind of helplessness in resource allocation. Today, with the rapid development of the national economy, scientific research institutions should seize the opportunity to concentrate all human, material and financial resources on scientific research and innovation. However, the reality is that many researchers have no choice but to put down their attention to innovation and think about how to better protect their patent rights.


However, the reality makes patent people move forward in a dual identity full of contradictions. On the one hand, they are the "strong" in innovation and research and development-new ideas and new ideas emerge one after another. The obsession with technological improvement, the continuous development of new fields and the desire for new knowledge are the common characteristics of this group. Moreover, because creativity is greatly affected by intelligence, physical strength and objective environment, the most creative period of a patentee may be only a few years or more, and this golden age should be spent in innovation; on the other hand, once they encounter infringement, they become a "vulnerable group" at a loss, and the technological advantages they were good at suddenly disappear, especially some small and medium-sized enterprises with insufficient human and financial resources will be helpless. This contradictory state will inevitably affect the scientific and technological innovation ability and scientific research enthusiasm of the patentee in China.


The essence of patent law is to confirm and protect patent rights, and the degree of development of patent legal system in different periods marks the level of scientific and technological development in different periods. The role of law depends on the economic base and also serves social relations. The "great protection" system of intellectual property rights, which echoes the TRIPs agreement, meets the objective needs of the rapidly growing group of patentees in China, but their rights need to be protected more effectively, and can make full use of the discretion of the patent system granted by international treaties. At the same time, we still need to realize that the various functional departments that play a role in the "big protection" mechanism of intellectual property rights need to clarify unified goals and coordinate and cooperate. There is still a lot of specific work to be done in the future, including overall planning and coordination between agencies., Continuous training of law enforcement personnel and continuous improvement of overall quality.

(Source: China Intellectual Property News)