Construction Standards on the Legal System of China

Study: Fan Yanli (Jimei District, Xiamen City Procuratorate) Site Date :2005-7-30 22:18:37

Abstract: The standard is not from the beginning has now produced the significance of technical standards, along with the technology, which makes the combination of intellectual property rights and standards as necessary. In this article, the dispute that the standard substance, by introducing in the process of WAPI standards has often been the ride that we want to develop national standards for independent and active participation to international standards and going, but also there are a lot of work to do, is a long way indeed. This makes the standard construction of the legal system as we currently have to solve. The article clearly stated the standard legal system must be based on our standards is issued based on the reality of the situation, the standard construction of the law must be closely integrated with the intellectual property system, proposed by improving the existing intellectual property system to achieve the criterion legal regulation.

First, how to build a standard legal system in China

(A) technical standards for the real battle
Technical standards battle is to fight patent application market. The two ways: one is that the enterprise's technology standards into legal standards, by law enforcement to technologies. Second, through the enterprise market, so its technology, products occupy most of the market, making their own technical standards become the de facto standard. But no matter what route to go, is to make one's own technical standards for a common standard so that the practical side was the status of the rules-makers, and eventually monopolize the market for excess profits. Technology to achieve true monopoly monopoly rely on technical standards to achieve, that is, the monopoly of intellectual property rights to achieve.

(B) of the standards war and the revelation of new ride
As mentioned earlier, the standard is essentially a social public resources, setting technical standards was to protect the product interchangeability and versatility, which is of exclusive rights and no ties. IETF (Internet technical standards setting body) standards for the technology point of view is: as far as possible non-patent technology of excellent technology. The organizations have interpreted as: IETF's purpose is to develop widely accepted standards, if the patent issues involved, the standard will involve the application of patent licensing issues, which affect people's interest in using this standard. To this end we have adopted these principles, first patented technology does not involve development of standards. Here we can see that standards are not produced from the beginning has now the significance of technical standards, technical standards of that time completely to serve the community, and does not have any private property. However, today's standard and not in accordance with the IETF, as originally conceived to develop, but went the opposite course. As information technology and digital technology, technical standards updated frequently and want to avoid the existing patented technology to set new technical standards are not realistic, so the combination of intellectual property rights and technical standards has become inevitable.
And developed countries in the technical standards of potential competition in the aggressive than in technical standards of China's competitiveness should be said that so far is still "vulnerable" status. As China's international economic position continued to strengthen, China's enterprises have been trying to find the opportunity to participate in the development of international standards in order to change the current unfair competition with enterprises in developed countries status. 3G platform technology standard TD-SCDMA is a successful example, from China's Datang Telecom and Siemens to develop and to the world, now the International Telecommunications Union (ITU) accepted and recognized success in China has increased In the field of mobile voice communications standards. However, this year launched the process of WAPI standard terms, to the independent development of national standards and active participation to international standards and going, we still have a lot of work to do, indeed is a long way.
WAPI standard setbacks in Frankfurt on the news conference, again, let people feel the impact of international standards, China's standard hard and heavy, and this shows that the standard has just started in China, the international standards arena in their own voice, there is still a a long way to go. The representative of China pointed out that the Intel-led many U.S. companies raised against the International Standards Organization processes of unreasonable demands, a serious violation of national standards organizations, principles of justice. China Broadband Wireless IP Standard Working Group official said the Chinese standard is not reinvent the wheel, it is based on the current series of international standards were developed for the blueprint, just when it comes to safety standards in the relevant content will become China Replacement own technology, the core is not to prevent foreign manufacturers of products into China, but that these products enter the market prior to the accession of China's encryption algorithm module, as it relates to national security. In manufacturing alone, China began to launch a national intellectual property standards, it should be said that industrial progress. That being the case, why was such a huge WAPI resistance? The reason is simple, the Chinese market with too much temptation. Great opportunity for the Chinese market in terms of potential, WAPI is indeed launched a change in the pattern of interests, but used to have the right to speak for the foreign interest groups, the Chinese style of WAPI is to make them most uncomfortable. Obviously, WAPI standard would directly impede the introduction of Wi-Fi in China boon.
Data show that in the world 16 000 international standards, China's participation in the development of the very few. International standards in the high-tech arena, China's voice is weak. If Chinese companies do not want to always placing him after the others, you must master the standards. There have been because of China's own DVD standard not the kinds of warning. That is not their own standards, the Chinese DVD manufacturers will be a huge year to pay the high royalties. Even the mode of foreign firms to DVD as a good business model to operate, and the Chinese WLAN standard, turned out, no doubt broke the wishful thinking of foreign manufacturers. If the EVD of independent development, is the manufacturer of self-protection awareness of the awakening of intellectual property rights, then, WAPI standard because of its wide lead in international disputes, and as the Chinese government and enterprises active in the international intellectual property battlefield landmark event fight . Also in the international intellectual property rights for Chinese enterprises to expand the competition out of more living space. Therefore, it is called "wireless standard" is a standard strategy in China fired the first shot, followed by a series of standards will also be introduced. It is clear that the standard of competition is in full swing.

Second, how to build a standard legal system in China

Standards battle has ignited the war, China's standard road, is a long way indeed. Standards of research related to intellectual property law, in practice, but also by the strength of enterprises, the country's comprehensive national strength and other factors, China's standards not only from the legal system to be regulated, but also from the corporate strategy, national policy etc. associated answers. As a graduate student in legal studies, I hope I can from a legal point of view of the construction of China's standard recommendations, in order to get feedback effect.
As noted above, the standard were not new things, back in a long time ago, the standard would have produced and developed. But the standard of competition as winning arms industry in recent years it has just happened. Had no correlation with the standard of intellectual property, combined with the technical standards for the future, resulting in endless power. Monopoly of intellectual property has been popularized by the standard form, we can aim to control the market. Behind control standards, there must be intellectual property support. If Empty standards, no intellectual property rights as the support behind, then no amount of standard control is useless. Intellectual property is increasingly becoming a huge industry, the pursuit of wealth, if intellectual property is a legal monopoly, then the standard is the legal monopoly of intellectual property "reasonable expansion." The combination of standards and intellectual property had a tremendous power. From the so-called common technology, common standards for competition to become the focus of today's industry, simply because of intellectual property involved, look at the constitution of ISO, without exception, is the existence and development of IP as a standard core. Therefore, the standard construction of the law must be rooted in the framework of intellectual property system, only the development of standards placed on the Intellectual Property Strategy in the middle, only to realize China's use of standards, control standards, leadership standards objectives.

(A) the legal status of our current standards
At present, the standard of intellectual property and technology law is almost a blank, just have a "standard method" or the last century enacted 80 years, has been far can not meet our standards for construction. Standardization Law of the General this clear legislative intent is "to develop the socialist commodity economy, promoting technical progress, improving product quality, improve social and economic benefits, safeguarding the interests of the state and people, so that standardization and development of the socialist modernization drive the need for external economic relations. " This trend with the current standard is very different. Standards and intellectual property rights of the future, the standard has become a symbol of high-tech field of competition to become the highest form of proprietary technology to pursue. Advances in technology, process, history has once again staged a standard war, this war was a result of standards was the world.

1. China has not led to general awareness of standards and the intellectual property rights. At present, there is no universal standard of awareness, which led to the development of intellectual property law does not introduce the concept of standards. Trademark law, patent law, unfair competition law, contract law, copyright law, software protection regulations designed to protect integrated circuit There is also no requirement to form a technical standards established for the purpose with the internal legal system. Understanding of the standard is still confined to improve product quality. Individual legal provisions on intellectual property rights do not exist between the technical standard strategy for the realization of the organic links.

2. Little is known about the agreement on TBT. Long time, we study focused on the TRIPS agreement, on the same IP, the standard is closely related to the TBT agreement is little knowledge of the domestic. Since China's accession to the WTO after the previous development of special protection of domestic trade policies such as tariff policy, import and export restrictions on intellectual property protection measures can not be implemented. The developed countries rely on its strong technological advantages of monopoly is formed in front of us put up a series of technical regulations, technical standards as the basic elements of technical barriers, technical barriers in the TBT Agreement that has been legitimized in, which makes us in international trade in an extremely unfavorable situation.

3. My role is not compatible with the technical standards of the legal system. China's current legislative purpose of standardization, technical and legislative measures to enhance the product mainly to improve the quality of versatility and safety, standards and intellectual property rights did not provide for the integration. This led to our standard tool in the face of foreign unable to resist when, as in the case of Cisco versus Huawei, Cisco's proprietary protocol for the legal case or the judge to become the key point, but because of our legal system the relevant standards blank, lead us not invoke the provisions of relevant laws to make their judgments.

(B) of the standard legal system of China's guiding ideology
There is a problem we must clearly understand: when we recognize the importance of standards, we are faced with enterprises in developed countries has been woven with intellectual property and standards, a large network of enterprises and enterprise groups in developed countries have been full its "first mover advantage" to participate and completed the most current standards-setting high-tech fields. Therefore, our standard legal system construction, must be based on my hair after the trend based on reality.

(C) of the standard model of legislation
For standard mode of legislation, there are three considerations:
1. On the standard intellectual property issues involved in separate legislation. The technical standards for aspects of intellectual property issues involved in separate legislation to regulate through. Technical standards for content are not involved in intellectual property law by improving the management of standardization. This pattern is established, the existence of three relatively independent legal norms: intellectual property laws and regulations (not including standard content), standardization of legal norms (does not include intellectual property content), technical standards, intellectual property rights related to legal norms. This model has the advantage of targeted, through special legislation on the standards to manage intellectual property issues involved. The disadvantage of this model is the high cost of legislation, the three legal standards difficult to achieve effective coordination between.
2. The development of intellectual property issues including the standard method. Standardization of the existing law be amended, divided into two parts that do not involve intellectual property rights standards and standards related to intellectual property rights to regulate. This legislation is inadequate model separates the relationship between standards and intellectual property. Technical standards developed to be said can be divided into two parts, a common standard (excluding intellectual property) and the other part contains intellectual property standards. Contains the standards of intellectual property is essentially a reasonable expansion of intellectual property, as opposed to their original role played by general standards, but is nearer from the intellectual property rights.
3. The standards-related intellectual property issues placed under the system of intellectual property law. That does not involve technical standards of intellectual property law to regulate the system through standardization, technical standards related to intellectual property rights through intellectual property rules. After injection of intellectual property standards to produce a new meaning, and become the weapons industry, winning the competition. From being ignored to become the focus of attention for all of this qualitative change is due to a combination of intellectual property rights and technical standards. Originally a public common technical standards, the reason why a victory is the standard weapon of intellectual property behind the support. Old standards and new standards is a qualitative difference between. Through the intellectual property system to achieve the standards for improving the rule of law, can fully reflect the standards of intellectual property support. I think the more appropriate model of such legislation.
More than three legislative model should be their own merits. As our current standard legal just started, what kind of concrete is more appropriate to China's national conditions, but also the standard practice in the further comparison. It is reported that the national standards committee is drafting "in the development of international standards relating to the provisional patent provides that" the aim is to solve the problem of intellectual property standards. This should be the standard of our legal system construction in the earlier attempt.

(D) Construction of the proposed standard legal system
1. Competition to build awareness of the future market standard legal system. In the standard competition is the technology behind the competition, and technological competition is behind the overall national scientific and technological strength of the competition. Market competition in determining the standards process, and continue to have new means of competition there. Intellectual property rights and standardization of the competition, in fact the future products and future market competition, which requires us to work in the standard sense of the future market competition.

2. To strengthen the research on the TBT Agreement. TBT agreements and intellectual property, standards very close relationship. Currently we study the TRIPS agreement, the domestic population, fewer people know the TBT agreement, much less use of TBT agreement dispute our standard of service. TBT Agreement makes technical standards can be a legitimate "technical barriers" in order to achieve competitiveness in international trade in a favorable position. Therefore, we should change the TRIPS Agreement and the light weight status TBT Agreement, TRIPS and TBT to do both, full use of the standard two agreements work for our service.

3. The standard of legal standards to deal with several relations involving the patent, generic technical protection, is also involved in trademark, copyright, software protection and antitrust laws. Between different departments, therefore the law needs to deal with the organic links between each other, to jointly promote the establishment and improvement of legal standards. Standard specification is no longer a simple issue, but includes a range of solutions and models, which determines the development of a technology direction and technology courses. In fact a technical standard solutions must be more than one kind of collection of proprietary technologies. Standard of competition and patent, trademark closely linked to the competition. Qualcomm's CDMA standard total of 1,400 patents. With standard products business production, if not able to get a lot of royalty income. In the international arena have begun to production standards do not produce products the enterprise. The legal system in establishing the standard required in the standard generic and patent law on the protection of the patentee's monopoly right to find the point of integration between.

4. Standards and legal problems of monopoly. Standard is very easily lead to monopoly, the standard itself is intellectual property "legal monopoly" of reasonable expansion. When the monopoly was used to limit the destruction of competition, competition needs to be restrictions on the monopoly. U.S. Government v. Microsoft monopoly case is a good example. Microsoft is to operating systems to establish their own market areas based on other operating systems is almost impossible to enter the competition with the INTEL-compatible computer operating system market. When a standard form, the transfer will increase the cost to consumers, this standard has created the conditions for a monopoly. Monopoly is not prohibited by law to be, but if the result of monopolistic competition affecting the market is to be prohibited by law. In the Microsoft case, the standards and monopoly is sometimes difficult to distinguish. Therefore, development of standards in our legal system should pay attention to antitrust review of standards in terms of development.

5. In the high-tech fields, the use of standard legal to gain competitive advantage. Law to establish the standard in high-tech field in China's competitive edge. With China's further integration into the world economy, we must participate in the international rules of international competition, of course, the standard of this competition, including competition. We should use the standard legal system to protect China's national industry. In China's accession to WTO will face more fierce global economic competition, the most intense in the high-tech fields and most importantly, the standard of competition. Certain "standards may be the world" will be a new generation of international competition, winning points.

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