The current situation and countermeasures of intellectual property protection in Shanxi Province
Abstract Since the "10th Five-Year Plan", the intellectual property work in Shanxi Province has further developed and improved. However, we should also be clearly aware that there are still many problems and deficiencies in the protection of intellectual property rights in our province. Currently, facing new opportunities and challenges after joining the WTO, Shanxi must actively take countermeasures from various aspects and continue to strengthen and improve the protection of intellectual property rights in our province.
Joining the WTO has had a strong impact on China, and its subsequent effects continue to ferment. As an economically backward province, Shanxi is also a weak province in intellectual property protection. The reason for Shanxi's weak intellectual property protection is directly due to the backwardness of education, economy, technological foundation and legal foundation, as well as the weak awareness of intellectual property protection. Due to the gradient gap in intellectual property protection, Shanxi will face the embarrassing situation of dual intellectual property "intrusion" from foreign and domestic developed regions. Faced with this severe situation, Shanxi must take immediate action and use active and flexible intellectual property strategies and tactics to take the initiative and win the intellectual property war in the new century.
1. Current status of intellectual property protection in Shanxi Province
(1) Patent rights
Science and technology are the primary productive forces, and independent innovation is the primary competitiveness. Strengthening independent innovation and controlling intellectual property rights are powerful technical supports for vigorously improving independent innovation capabilities and building an innovative country. As one of the powerful tools for independent innovation, patents play an important role in the development of enterprises. The current patent system in our province has a bright future. The specific performance is as follows: 1. The number of patent applications continues to maintain a rapid growth momentum. According to statistics from the Provincial Patent Office, the number of patent applications in the province has increased from 1,475 in 2001 to 1,985 in 2005. The total number of patent applications during the "Tenth Five-Year Plan" period was 8,782, an increase of 55.2% over the "Ninth Five-Year Plan" period. %. 2. The patent service system has achieved remarkable results. As of 2005, all 11 prefecture-level cities in the province, as well as enterprises and institutions such as Taigang, Taizhong and Taiyuan University of Technology, have established intellectual property management service agencies. In addition, according to relevant data at the end of 2004, our province has established 4 patent agency service agencies and has more than 90 patent agents who have obtained patent agency qualification certificates issued by the state. Taiyuan City became a national intellectual property pilot city. 3. The social distribution of patent applications is becoming more reasonable. In the distribution of patent applications, invention patents have maintained a growth trend for 10 consecutive years. In the four years before the "Tenth Five-Year Plan", the province applied for 6,797 patents, including 1,872 invention patents, accounting for 27.54% of the total number of patent applications, an increase of 5 percentage points compared with the "Ninth Five-Year Plan" period. The awareness of industrial and mining enterprises in protecting their own intellectual property rights has been significantly enhanced. The proportion of patent applications by industrial and mining enterprises in the total number of applications increased from 9.23% in 1996 to 19.04% in 2004. Compared with 2003, the number of service invention patent applications experienced a breakthrough growth in 2004, with an increase of 43.9%. Among service invention patents, the number of applications from colleges and universities doubled by 120%; the number of applications from enterprises increased by 130, an increase of 53.94%. 4. The implementation environment of patented technologies continues to improve. Taiyuan Heavy Machinery (Group) Co., Ltd., as the first batch of national patent pilot units in Shanxi Province, completed acceptance in 2004. China CNR Yongji Electric Machinery Plant and Shanxi Sanjia Coal Chemical Co., Ltd. were identified as the second batch of national enterprise and institution patent pilot units. These figures fully demonstrate that the patent industry in Shanxi Province is entering a new stage of rapid development.
(2) Trademark rights
With the continuous development of intellectual property protection in our province, the trademark awareness of the whole society is also constantly increasing. Over the past few years, we have worked hard to strengthen the trademark work of enterprises, promote the implementation of trademark strategies by enterprises, encourage and support enterprises to strive for famous brands, vigorously promote the trademark management level target responsibility system, standardize the use of enterprise trademarks, and actively investigate and deal with illegal activities such as trademark infringement and counterfeiting. Act, protect the exclusive rights of registered trademarks, effectively maintain the order of market competition in our province, and promote the economic and social development of our province. According to statistics, 11 prefecture-level city industrial and commercial bureaus in the province have established specialized trademark management agencies, and 87 county (district) industrial and commercial bureaus have established corresponding management agencies. Other county (district) industrial and commercial bureaus and grassroots industrial and commercial offices have Full-time and part-time trademark management staff. There are 197 people engaged in trademark management full-time or part-time in the province.
In addition, our province has also made great progress in copyright protection.
2. Problems and causes of intellectual property protection in Shanxi Province
Since the "10th Five-Year Plan", the intellectual property work in Shanxi Province has further developed and improved. However, we should also be clearly aware that compared with provinces that have done better in intellectual property work, there are still many problems and deficiencies in the protection of intellectual property rights in our province.
(1) The total amount of intellectual property rights owned in Shanxi does not meet the inherent requirements of Shanxi’s economic development.
As far as patents are concerned, Shanxi is a weak economic province and a small patent province. The small number of patents has always been a "bottleneck" restricting the independent innovation of enterprises in our province. The number of patent applications in our province only ranks 23rd in the country, far behind other brother provinces and cities, and there is still a certain gap compared with the other five provinces in central China. In terms of trademarks, according to statistical information from the China Trademark Network, there were 527,591 trademark applications nationwide in 2002, 2003, and 2004. Our province applied for 4,998 trademark registrations, accounting for 0.95% of the total number of applications nationwide. In 34 provinces, Ranked 25th among autonomous regions and municipalities. Shanxi *** has 9 famous brand products, ranking 19th in the country by the end of 2004. There are 8 well-known trademarks in China, namely Xinghuacun, Qiqiang, Tianji, Tunyu, Shuita, Zhuyeqing, Oruite and Guanyun, ranking 20th in the country.
(2) The technical content of authorized patents is not high, the regional distribution is uneven, and the structure is extremely unreasonable.
Judging from the composition of patents in our province, utility models and designs with low technological content account for the majority. In 2005, 1,220 patents were approved and authorized in our province, including 280 inventions and a total of 1,185 utility models and designs. The regional distribution of patents in our province is mainly concentrated in Taiyuan, Yangquan, Changzhi and Datong. In addition, in terms of the subjects of patent applications, individuals and industrial and mining enterprises account for a large proportion, while universities and scientific research institutes account for only a small proportion. In 2005, among the patents approved and authorized, 852 were granted to individuals, accounting for 69.8%, 203 to industrial and mining enterprises, accounting for 16.6%, and 165 to universities and scientific research institutes, accounting for only 13.5% of the total. (Source: Shanxi Intellectual Property Network) The small number of enterprise patents is detrimental to technological innovation in our province. Because enterprises are the main body of technological innovation, the patent work of enterprises directly determines the industrialization status of their innovative achievements. The lack of patents in universities and scientific research institutes is seriously inconsistent with our province’s long-term emphasis on research institutes and neglect of industry in technology research and development, with a large amount of scientific research funding invested in universities and scientific research institutions. The reasons are, first, the research of some scientific research institutes It is out of touch with the market and the needs of enterprises; second, there are problems in the scientific and technological management system. Some scientific and technological workers do not immediately apply for patents for the scientific research results formed in their scientific research work, but are eager to participate in awards and publish them, causing the economic value of scientific and technological achievements to be lost in vain.
(3) Trademark awareness is weak, and trademark squatting is a serious phenomenon, causing serious economic losses.
The trademark awareness of enterprises in our province is relatively weak. They are not very enthusiastic about creating famous and well-known trademarks. They are not very capable of using trademark strategies to develop markets and participate in competition. There are not many trademarks that have important influence in domestic and foreign markets. , forming an unfavorable situation in which small and medium-sized enterprises do not have strong brand awareness, and large enterprises lack well-known international and domestic brands. At present, Shanxi trademarks are still facing the bad luck of being registered. In 1996, Fenjiu Group's trademark was registered by a Japanese company, which prevented Fenjiu from entering the Japanese market. Vice Governor Hu Suping reminded Shanxi enterprises to be optimistic about their own trademarks at the Shanxi Provincial Famous Trademark Recognition Conference held in April 2006. After "Fenjiu" and "Guanyun" were registered by a company in Hong Kong at the end of 2005, the "East Lake" trademark was also registered in Hong Kong recently. In recent years, there have been frequent incidents of preemptive registration of trademarks such as "Qingheyuan", "Qinzhouhuang", "Dazhai" and "Zhuyeqing" in Shanxi, and some cases have not yet been finalized. In addition, counterfeit and shoddy goods are currently flooding the market in our province, with repeated crackdowns. This is not only a legislative issue, but also factors such as insufficient law enforcement, insufficient coordination among various departments, and local protectionism intervening in the fight against counterfeiting.
(4) There are many gaps in local legislation, which does not reflect the flexibility of local legislation to provide supporting services to intellectual property laws.
Take copyright legislation as an example. The piracy phenomenon in Shanxi is not only serious but also open, but there is no corresponding local regulation to combat piracy and promote and maintain genuine copyrights.
The development of network technology has had a huge impact on the existing intellectual property legal system and even the entire legal system. Problems such as using other people's trademarks or trade names as domain names and putting other people's works on the Internet for public reading and downloading are quite prominent. Since there is no place Legislative support created great difficulties during the trial.
(5) Lack of intellectual property administrative law enforcement means, insufficient strength, and low quality of the team
In patent law enforcement, the current patent law and its implementation rules do not empower the management of patents Necessary administrative coercive measures such as freezing, sealing, and seizure by certain departments often make it difficult for law enforcement officers to obtain actual evidence or to control illegal items, which makes the handling of cases more difficult, resulting in an ineffective crackdown on infringement and illegal activities, and ineffective protection of patent holders. In place and other phenomena. This problem also exists in the process of copyright administrative law enforcement. Judging from the Copyright Law and relevant implementation regulations, the copyright administrative department can only preserve evidence for copyright infringement, and implement a prior registration system for evidence without compulsory measures such as forced sealing and seizure. Administrative law enforcement means are also lacking. In addition, there are still common problems in various cities in our province that the intellectual property administrative law enforcement agencies have few personnel and insufficient strength. In addition, due to the strong professionalism and legality of intellectual property rights, the quality requirements for law enforcement personnel are relatively high. However, most of the law enforcement personnel in our province’s intellectual property administrative law enforcement team lack professional training and systematic study of the intellectual property legal system. The overall quality of the team cannot meet the requirements of administrative enforcement of intellectual property rights.
(6) The quality and efficiency of trial cases need to be improved
In terms of the quality of cases, the main manifestations are: First, the amount of compensation to the infringed person is low. Due to legal provisions The two methods for calculating compensation, namely the actual losses of the infringed party or the illegal profits of the infringer, are difficult to operate in practice, and my country still implements the "fill-in" principle of civil law for intellectual property infringement, resulting in "compensation for nine out of ten cases is insufficient" " phenomenon occurs from time to time; secondly, the legal relationship of the case is unclear, resulting in wrongful conviction or cases being sent back for retrial. In terms of case handling efficiency, the handling cycle of intellectual property cases is generally longer. From the first instance to the end of the second instance, it generally takes more than 1 year, and some even take 5-6 years. The rights to intellectual property rights cannot be clarified. This situation is inconsistent with The short product cycle under market economy conditions is seriously incompatible. The main reasons for this are: First, the suspension procedure of patent cases. According to the relevant judicial interpretations of the Supreme Court, for design and utility model patents, if the defendant declares to the National Patent Reexamination Board that the plaintiff’s patent rights are invalid during the defense period, the court will generally It is necessary to suspend the trial of infringement cases and resume the trial of infringement cases until the Patent Reexamination Board reaches a conclusion, resulting in a delay in the judgment of infringement cases. Second, it is difficult to judge the facts of intellectual property cases. Since fact determination in patent litigation often requires strong technical expertise, in order to find out the facts of the case, judges often entrust relevant departments to conduct appraisals and consult experts to find out the case. fact.
(7) The coordination between administrative departments and judicial departments needs to be strengthened, and the authority of judicial protection has not been fully reflected.
Due to the influence of traditional customs, when an intellectual property infringement occurs, the injured party usually complains to the intellectual property administrative department. After the administrative department investigates and deals with it, even if it is found to constitute a crime, it is rarely found to constitute a crime. The cases were transferred to the police for criminal investigation. As a result, many cases that constituted crimes of intellectual property infringement were not pursued. The reasons are: First, administrative agencies have invested costs in the administrative enforcement of intellectual property rights. Once the case is transferred to the public security for criminal investigation, they lose the right to handle the case, can no longer impose administrative penalties, and the enforcement costs cannot be recovered. Second, it is difficult to directly transform the evidence materials of administrative law enforcement into evidence in criminal proceedings. The main reason is that administrative law enforcement is relatively simple, has greater discretion in administrative law enforcement, and has weak requirements for the relevance of evidence. In criminal proceedings, due to the high requirements for evidence, Obtaining evidence is more difficult. Third, the existing intellectual property laws and regulations do not provide clear standards for filing cases of intellectual property crimes. There are no legal provisions on the conditions under which administrative law enforcement agencies should transfer cases that may constitute crimes to judicial organs, and there is a lack of corresponding supervision mechanisms.