Patent right refers to the exclusive right or exclusive right enjoyed by the inventor or his assignee according to law within a certain period of time. Patent right is an exclusive right. Once it exceeds the protection period stipulated by law, it will no longer be protected by law. ?
According to the provisions of the Patent Law, if the patent application is rejected after substantive examination, the patent administrative department of the State Council shall make a decision to grant the patent right and issue a patent certificate. 199265438+February 3 1 The protection period of the invention patent applied before is fifteen years from the date of application, and the protection period of the utility model and design patent is five years from the date of application. Before the expiration, the patentee may apply for an extension of three years. The protection period of the invention patent right applied after 1993 1 is 20 years from the date of application, and the utility model and
The term of protection of the patent right for design is ten years from the date of application.
Developing countries seem to regard the protection of intellectual property rights as a noble thing, and even a symbol to distinguish civilized people from barbarians. I guess, in people's subconscious, it seems that protecting intellectual property rights is equal to respecting knowledge and intellectuals.
Can knowledge really be used by private individuals? Jefferson disagreed. He claimed that thought itself cannot be restricted or possessed, so invention itself cannot be a property entity. The theory of new economic growth points out that the reason why people can maintain sustainable economic growth and the reason why people's income level is constantly improving is mainly because knowledge cannot be completely privatized, and knowledge is a kind of "quasi-public * * * product". Knowledge, like the light in the night, can not only illuminate the people in the room, but also let passers-by see the road clearly. Those dignitaries who want to occupy the ideological monopoly forever are like locking the doors and windows of their rooms tightly, hoping in vain that pedestrians outside will not "enjoy" their lights. Unless new products and services have been locked in the safe, as long as these new products and services enter the market, people may learn and imitate some new knowledge embodied in these products and services. Because people can always learn new knowledge "for free", the later generation can always develop more updated products and services at lower cost, which can improve the living standards of human beings. More importantly, many inventions and innovations applied to business originally originated from research activities supported by public funds. According to the information provided by American Pharmaceutical Association, only 43% of R&D pharmaceutical institutions are funded by the industry itself. 29% of R&D institutions are funded by the National Institutes of Health of the US government.
We admit that the protection of intellectual property rights can provide an incentive mechanism to stimulate more innovation. Lincoln once said, "The patent system adds fuel to the creative flame of genius". However, the step of truth is fallacy. Intellectual property is not the only additive, and reputation and curiosity may be better fuels than naked interests. Intellectual property is not even the only tool for innovators to gain benefits. For example, we can use the reward system to reward innovators, and the market itself has invented a rather subtle incentive mechanism. Even without patents, innovators can still make use of many "natural" protection mechanisms and get a lot of benefits. These "natural" protection mechanisms include "imitation lag" (caused by the cost of absorbing new knowledge) and "reputation benefit" (as the initiator). An American economist named Levin surveyed 650 senior R&D managers and found that patents are not as important as "natural benefits" such as "imitation time lag" and "downward learning curve". In another interesting survey, Mansfield asked 65,438+000 executive directors of American company R&D: Without patent protection, how many inventions and innovations would not appear? The 100 representatives come from 12 industrial groups, among which only Theory of Three Represents thinks the proportion will be higher (60% in pharmaceutical industry, 38% in other chemical industries and 25% in petroleum industry). The representative answers of six industries are basically zero (0% for office equipment, automobile industry, rubber products and textiles, and 1% for primary metal and instrument manufacturing). Industries with low ratio also include: machinery industry 17%, steel manufacturing 12%, electrical appliances 1 1%), with an average ratio of about 14%. Mansfield later conducted similar surveys in Britain and Germany with similar results.
Even if intellectual property rights protect the interests of innovators, are the interests of innovators consistent with the interests of the whole society? In other words, can protecting intellectual property rights definitely promote economic growth? Many scholars worry that the "winner takes all" nature of the patent system will hinder the competition among innovators or lead to the duplication of innovation efforts and investment. Other scholars point out that this system will lead inventors to improve existing patents instead of creating real new knowledge, so resources are wasted. Considering the accumulation and interaction of scientific and technological processes, strong protection of key innovations may delay competitors from creating more useful innovations for the world. Many people also ask why all inventions have the same protection period despite their different social values, and why the protection period is as long as 17 or 20 years.
In developing countries, it is even more doubtful whether the existing intellectual property protection system can promote technological progress and economic growth. There is no evidence that strong intellectual property protection in developing countries will encourage more R&D activities. In fact, recent research on science and technology in developing countries shows that the most important new knowledge for developing countries is not the kind of knowledge that can be patented. What developing countries need most is not truly novel knowledge from a world perspective, but knowledge that is more suitable for local conditions. In order to further absorb more advanced scientific and technological knowledge, developing countries must first imitate and copy. In this process of imitation and replication, technological innovation and progress have actually appeared: it takes hard work to learn and master new production processes; Tracking the development of new technologies also requires efforts; It also needs efforts to evaluate and select the appropriate technology industry; Applying new technology to domestic production conditions requires adjusting production process, production technology and organizational arrangement; These efforts are reflected in the investment in technological capabilities and the improvement of the country's ability to effectively use technological knowledge. Unfortunately, these knowledge advances accumulated in the process of imitation and learning cannot be protected by the patent system. This is why most countries have to use infant industry protection and other industrial policy measures to encourage this kind of scientific and technological development (as in the case of the United States and other followers in the19th century). Unfortunately, these measures are prohibited under the current WTO agreement, although they are not as harmful as people think. Studies by Helpmann, a professor at Harvard University, and Grossman, a professor at Princeton University, show that imitation in developing countries can promote innovation in developed countries.
TRIPs under the framework of WTO has had a negative impact on the development of developing countries because of its defects: (1)TRIPs has strengthened the monopoly power of manufacturers in developed countries, enabling them to grab more profits, but at the same time, it has kept product prices high and hindered the interests of consumers in developing countries (including consumers in developed countries). Not to mention the high prices of computer software and audio-visual products, what is more serious is that some products are directly related to the lives and health of thousands of people, but people in developing countries can't get them. Take drugs for AIDS as an example. There are 36 million AIDS patients in the world, 95% of whom live in developing countries. In some African countries, because more than 1/4 people are infected with AIDS, their life expectancy is expected to decrease by 20 years in the next decade. If drugs can be obtained in time, the mortality rate of AIDS can be greatly reduced. However, the dosage of AIDS drugs produced by American companies is worth 65,438+00,000-65,438+05,000 dollars, while the similar generic drugs produced in India are only worth 300 dollars. (2) Developed countries use TRIPs to prevent advanced technology from flowing into developing countries, and producers in developing countries have to pay a higher price in order to upgrade their technical level. In some cases, developed countries simply shut their doors completely, making it impossible for developing countries to acquire advanced technology. In order to fulfill the Montreal Convention, Indian enterprises plan to switch to HFC 134a, which is more effective for environmental protection, instead of producing CFCs. American companies with patent rights will charge a high price of $25 million, and the actual price is only about 2 million to 8 million. Why do American companies charge exorbitant prices to pay back the money on the spot? It wants to buy and control shares in Indian companies. (3)TRIPS allows natural substances and procedures previously considered as non-patented to apply for patents (microorganisms, biological processes, etc.). ), which will fundamentally change the meaning of intellectual property rights. The original intellectual property rights only protected innovators, but with the protection of microorganisms and biological processes, intellectual property rights may only protect thieves. Some scholars have pointed out that developed countries are waiting for opportunities to carry out "biological piracy" activities: some manufacturers in developed countries can apply for patents for things that are already widely known in developing countries, because they can repackage these products composed of traditional knowledge systems and apply for patents according to agreements, but developing countries do not have this ability. This will do great harm to developing countries: an American company tries to apply for a patent for a herbal medicine to treat wounds, and the Indian government pointedly points out that Indians have known the efficacy of this herbal medicine since ancient times. However, another American company successfully obtained a patent for extracting AIDS drugs from bitter gourd in Thailand, although this was first discovered by Thai scientists.
People are ignoring the lessons of history consciously or unconsciously. Western scholars who claim that protecting intellectual property rights is the only choice for economic growth in developing countries have falsified the truth of history. The truth of history is. All backward countries introduce technology by "stealing teachers". In the early stage of industrialization in developed countries, intellectual property rights have never been well respected, especially in other countries. Compared with the past practices of developed countries, contemporary developing countries have done much better in many aspects. During the industrial revolution, Britain was the most technologically advanced country. In order to prevent technology leakage, Britain even passed laws to prevent skilled workers from going abroad. In response to these measures taken by advanced countries to stop the outflow of technology, backward countries have adopted various illegal means to acquire advanced technology. Entrepreneurs and skilled workers in these countries often engage in industrial espionage with the explicit consent and even active encouragement of the state (including the reward of special technology). France, Russia, Sweden, Norway, Denmark, the Netherlands and Belgium carried out extensive industrial espionage activities against Britain. It was not until 1907 that Switzerland formulated the patent law half-heartedly, and it was not until 1954 that the Swiss patent law reached the level of other advanced countries. However, at the end of 19, although there was no patent law in Switzerland, the Swiss were one of the most innovative peoples in the world. During this period, the Swiss made world-famous inventions in textile machinery, steam engine and food processing (milk chocolate, baby food, etc.). He also pointed out that there is no evidence that the lack of patent system will become an obstacle to foreign direct investment. In some industries, especially food processing industry, the lack of patent system has led to the increase of foreign direct investment.
With the accumulation of experience, developing countries will increasingly understand that the Agreement on Trade-related Aspects of Intellectual Property Rights is not in their interests, and consumers in developed countries may one day understand that this system is not in their interests either. When 97% of the world's patents are in the hands of developed countries, the cost of using these patents is far greater than the benefits supported by these patents. The historical review of intellectual property protection shows that what developed countries want to do now is to remove the ladder that developing countries can climb after climbing the stairs themselves.
At the very least, students should respect other people's knowledge and not copy or cheat.