Intellectual property system needs to develop a systematic mechanism design

Analysis: Chun-Quan Liu (Beijing Guangzhou Sheng Law Firm Shanghai Office) Site Date :2007-5-15 14:02:29

For the flow of street vendors selling pirated CDs, "seven large blocks, match for a broken straw hat", which is in some parts of a true portrayal of administrative enforcement of intellectual property rights; many "second malignancy," "three palace" of counterfeiting , those who sell fake, to make a living out yet another place a few days they called back. Behind these phenomena, in part, reflects China's current intellectual property system, a major design flaw, it is fragmented, legislation, administrative law enforcement, judicial, social and management fragmentation; various executive-led legislature as the reason, the system design often also "Railway Police, the control section of" lack of co-ordination and systematic institutional framework.
As the last ten years our company has frequently experienced the profound lessons of intellectual property, now on the point size of the domestic enterprises to talk about intellectual property rights, at least in words can no longer say seriously. However, by the end of 2006, domestic the most recognized intellectual property rights, the largest investment in R & D Huawei had a wrap-up: currently leading a large number of domestic patents and patent applications, Huawei has so far not one original patent. Huawei like this, not to mention the other companies. Therefore, we are talking about protecting intellectual property rights and building an innovative country must be based on national development stage and the immediate reality, not only the good wishes of intellectual property protection. There are many scholars and foreign lawyers are only aware of serious violations in China blindly attack, it ignores the causes of, and thus has no solutions to the root of the problem. But the legislation and the government can not do this, the Government's responsibility to combat infringement, protection of human rights, maintaining national security is the basic survival of the government's responsibility, or our decision-making will be deviations, will fall into the more intellectual property infringement against the spread of the vicious cycle of more .
At present, countries are developing intellectual property strategies to be enacted soon, can not just prohibit and combat infringement, but not detail the causes of violations, as well as the fundamental way to eliminate violations. I have been a number of private primary investigation, they believe, for small and medium enterprises, if their own intellectual property rights innovation, who are willing to suspense to false? But the fierce market competition, survival and development of enterprises should, first of all, in most areas of multinational corporations has been completed as early as the premise of the patent and other intellectual property layout, enterprises own intellectual property developed there may be? Many multinational companies such as doing everything possible to embed their proprietary international standards in this area if the State in international negotiations and not through the adoption of national standards for the regulation and control in China and balanced the interests of domestic enterprises, rely solely on the strength of our business community is almost powerless . Secondly, if the premise of respecting intellectual property rights under the rules of the game, is there a more reasonable price through the lawful authority of the possible? For example, in a few years ago, exports have lacked DVD royalties dispute, when the export price of China's most enterprises patent pool to the right if the plane were collected royalties, then the basic profit, in this case, DVD manufacturers in China are either out of the market, or is forced to use self-developed innovative new technologies (such as EVD) in order to avoid patent issues. Third, there is no domestic innovation and the creation of independent brands of social atmosphere and cultural soil? In other words, the blind worship of foreign goods people underestimate how to solve the psychological domestic products, when South Korea can be as independent as solidarity to support the national brand? If these problems are not resolved, then there will always be companies inevitably go the way infringement piracy and counterfeiting.
Innovation and intellectual property protection, government and corporate positioning and role of the innate should not be the same. But now some local governments do not recognize this. Often cracking down on infringement, light innovation and protect intellectual property rights; re-enter the capital, after the light into the use of funds performance evaluation; heavy short-term benefits and local interests, light long-term interests and global interests; important readily quantifiable, immediate outcome of the project, light basic, hard to bear fruit in the short term but just need the national R & D investment. For these reasons, it appears the same input but different outputs of differentiation, such as private venture capital bred Sohu, Netease, Baidu and a series of new enterprises, but many governments set up or venture capital funds or incentive-oriented funds may also done a lot of things, but comes often lackluster performance. Protection of intellectual property rights, government responsibility and the responsibility of professional bodies to separate. Legislative changes should be adopted gradually to government approval, the judiciary should not control or can work regardless of the professional to professional organizations, focusing on system design from the perspective of guiding and supporting the interests of the parties to the choice of game. For example, consider the aggravated intentional torts, the introduction of punitive damages; to encourage the insurance companies to develop litigation risk insurance, to avoid litigation of intellectual property rights of Chinese enterprises has been worn down, but can not be expanded by means of human response to intellectual property disputes increase. This will not only relieve the court, the government's burden and reduce the likelihood of corruption, but also enhance service quality and improve efficiency. We traditionally like Tongguosheli regulatory agency to show importance of the issue, and now governments at all levels to establish ???? ??, but for Xin set up administrative departments do much, cost-effectiveness in everything Jihe? And if the exercise of functions by the relevant professional bodies (such as Hong Kong, in some cases prosecution is conducted by the Attorney General outside counsel) are more economical and efficient? These problems often lack consideration and research. Domestic legislation and international standards is the most intellectual property laws and regulations, if our legislation in this field to increase the so-called "Chinese characteristics" thing, then, most likely in the international relations of the rare people to choose according to our law as a quasi- law, which inevitably led to our law are gradually marginalized.
IP professional institutions and businesses is a symbiotic relationship. Government should learn from the lessons of the State Food and Drug Administration for the survival and development of professional organizations to create a level playing field, to prevent corruption in professional organizations to become brokers. For the integrity of professional organizations, on the one hand to the market through open competition means of ensuring a level playing field, but this can Tongguo insurance Insurance, occurred after the hired party to litigation to resolve the claim.
Business and government's social role and position is not the same. As a business, he could only appeal to the State to combat infringement, eradicate piracy, counterfeiting, but as a country is, first, there is also suspected of crime to businesses and practitioners to consider the way to solve the problem to make a living, which requires To improve the social security system, or bogus trademark of starvation after the person was released from prison, then there will be path dependence do leave marks. Secondly, such as the DVD manufacturing business, government obligation through industry associations to help these companies get a relatively reasonable price of the license, this must now do is make up a truly independent trade association, as soon as possible out of the current was nicknamed " Second, the government "," retired cadres, "such a role, to eliminate suffering from the media criticized the" Association of harassment "phenomenon; the third level, taking into account the attractiveness of the Chinese market, multinational corporations, major intellectual property issues in relation to the negotiations, Government must play a leading role. If the multinational corporations in intellectual property can not meet, in open market, the adoption of technical standards, market access and so should give priority to domestic producers and to transfer advanced core technology multinational. Particularly in government procurement and so on, at least equal status to domestic enterprises. In addition to foreign capital taxes as soon as possible to eliminate differences in order to achieve national treatment, but also to achieve "community treatment" of equality, that is, staff accounts, vehicle licensing and other cities within the management of foreign capital can not be distinguished. The current reality is that foreign investors enjoy the tax benefits in addition, there are a lot of preferential treatment than the general public, for example, the local is always favorable to foreign investors for foreign employees, investors free of charge on the card given to vehicles to address the account, the local tax the return, reduce government fees, from UNPROFOR security arrangements, and even non-special approval by the local government from search, inspection, arrange treatment of CPPCC National Committee members, etc., domestic small businesses in general are difficult to hold a candle. Importance of foreign investment as long as the local government performance appraisal system was not abolished, private enterprises enjoy the same treatment is difficult. The treatment is not a stealth tax law changes to achieve "unified tax" can succeed. Of course, say no to exclusion of foreign capital, the key to give equal treatment with domestic or foreign capital, to give national treatment to foreign investors, but not to the super-national treatment. In other words, not more foreign capital to enjoy the treatment, but treatment of domestic companies enjoy less. Equal only in foreign competition in order to market and legal real role to play.
One thing I feel very deeply for, there was a foreign official visit to Shanghai during the day, Ms. Gao Guandi accompanied her husband to attend formal occasions, talking about intellectual property protection, critical of China's intellectual property rights violations; the evening, his wife adjourned Xiang Yang Lu bargain to visit this, when someone asks when his wife answered with a smile: "The life is the life, the law is the law." (Life is life, the law is the law) Level in society, we must mobilize the whole society to contribute, look for the creation of innovative way. For example, the insurance companies to develop and launch legal risk insurance, should the United States, the European Union continue to place a patent lawsuit against Chinese enterprises, 337 surveys and other legal risks, corporate legal costs should be included in the budget, tax departments should allow the legal costs are into the cost may be related to the industry for the export of significant litigation, by industry associations to establish legal cost-sharing, compensation mechanism, to avoid the international intellectual property giant will use legal means to wear down the small and medium enterprises in China, to not fight the enemy purposes. Agent in 2005 I saw a company responding to the U.S. anti-dumping case of diamond, the final result is the United States International Trade Commission, was removed after the preliminary ruling, which is responding to anti-dumping in China since the rare victory. However, because our customers to participate in the respondent, to pay the legal fees and other costs, more domestic companies are not responding, but take a free ride on the last enterprises involved in the psychological imbalance is inevitable. 337 surveys for the United States of such cases, if there is no corporate respondent, the consequences are often the industry's enterprises have been expelled from the U.S. market, while responding to cost tens of millions of dollars, the earlier the establishment of a system including the mechanism of action, including insurance, the more it Our good for business.
Internationally, the government lawyers to the professional sector, industry associations for comments and feedback, use of WTO trade policy review of the platform, the abuse of intellectual property rights will be "knowledge hegemony," the Regulation of the topics included in the negotiations as soon as possible; as the Internet and the rise of global e-commerce, the Chinese government and enterprises, research institutions, professional bodies should work together to make the new government negotiations with other trading countries, a new framework for intellectual property protection and issues. With the development and application of technology upgrading, China must join the new communications, aerospace, electronic manufacturing and electronic commerce standards, the formulation of international conventions, to change the past, we passively accept the other rules of the game situation.
Administrative protection of the domestic administrative authorities has been that there is an effective form of protection with Chinese characteristics, but that the protection of executive-led model for many foreign friends are very difficult to understand. From the practical experience, the high cost of administrative protection, but the development and protection of intellectual property throughout the executive is not directly proportional to the long term, this model must be reformed, to gradually weaken the protection that the final abolition of the executive, united in the judicial protection. Judicial relief is not only a priority, and must start as soon as possible civil reform, reform and further improve the compensation system, for aggravated intentional tort may consider the introduction of punitive damages, the right to change the current intellectual property litigation always won the case but lose the money to the embarrassing situation.
On Chinese medicine, Traditional Knowledge (Traditional knowledge), the old number on the cultural heritage legislation to protect our country to really take it seriously, put into action as soon as possible, delay the day one point is lost opportunity.
Historically, Dayu, combining guidance, an end to the rivers to the Sea, floods no longer spread, very successful Wei Jue, forever be honored. Today, if the piracy phenomenon of counterfeiting and other intellectual property infringement, then compared to the flood, to cure the flood, only against infringement by such a "block" approach is not enough, we must combining guidance.
After 20 years of study and reference, I think we should be in accordance with their national conditions and international development environment to reflect on our intellectual property legislation and institution building. No legal basis to address the past and to maintain the continuity of legislation, our legislation and more legislation from the individual starting a change in law also can not change when the best do not change, this is a necessary and effective at the time, but in the new period should be systematic focus on building mechanisms in order to strengthen the role of the legislative regulation of lead. Suggested that the NPC can be organized if necessary, certain intellectual property legislation and system design options for legislative and law enforcement costs and performance evaluation in order to amend the law to provide a variety of reference.
Therefore, I believe that to achieve the goal of building an innovation-oriented country, China's intellectual property system design need to establish a systematic mechanism to focus on design of the system to boot with the various stakeholders in the game while avoiding disadvantages of the value of the spontaneous orientation so as to achieve a multiplier effect, a fundamental solution to the current sense of strong intellectual property rights, infringement of intellectual property is more widespread.

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