A Thesis On The Intellectual Property Ownership&Application Of National Science&Technology Program

Due to the development of intellectual economy and the integration of world economy,major economical strategies have been made world-wide on turning scientific research achievement intoactual productivity, while a number of research programs has been started and promoted knowledgeacquisition and application. Under this circumstance, national science and technology programs havereceived increasing attention, while its policies and regulations have becoming developed.Currently, discussions on operation and management of these above-mentioned programs have moregenerated from the economical and managerial aspects, while this thesis attempts to begin analysis withintellectual property ownership and application. It is suggested, intellectual property (IP) itself isintangible in which its ownership is more technical than other general property. In terms of nationalscience and technology programs, the ownership and application of its IP is foundation of coordinatinginterests of all parties involved. Only when the framework of regulation on IP is established and improvedcan promote sustainable innovation and virtuous cycle of national science and technology programs.Being foundation of this framework, IP ownership and application includes IP of national science andtechnology programs, as well as policies and regulations on rights and obligations of all parties.Many countries have experienced the process from “dominating ownership” to “assigning ownership” onIP ownership and application of national science and technology programs issue. The mainstream is toassign ownership conditionally, that is to assign the ownership of invention that funded by the state toprograms contractors; at meantime, to remain state’s rights to intervene. Current legislation in our countryconform with this mainstream. Since2000, a series of regulation assigning IP ownership and applicationof national science and technology programs has been released successively, learning from legislation indeveloped countries, especially the2007edition of Law on Science and Technology Progress, directlyreferenced relevant content from American Bayh-Dole Act, adding article20, article21, legallyacknowledged the principle of “programs contractors own the intellectual property, while for someexceptions,state own it”, in efforts to encourage technology innovation and enhance its contribution tonational economic and social development. However, since this regulation has released, pronounced gap still exists as compared the output rate and conversion rate of national science and technology programswith that in developed countries. There are a number of influencing factors, indicating that these policiesneed to be taken reflection and improvement.Reviewing IP ownership and application of national science and technology programs in other countriessuch as Unite state, Japan, UK, they all have comprehensive policies and some specific practices. In Unitestate, Bayh-Dole Act is one of the examples that assigned the ownership to the programs contractorswhile making policies on a series of rights and obligations under this principle through a series oflegislative patterns, which ensured the implementation of the autonomy of contractors and theintervention of the state. In UK，a unique project model has created, aiming at the diversifiedparticipation in investment and research and development cooperation, and an IP ownership andapplication agreement has therefore released, which provided the necessary legal guidance for "autonomyof will" in industry and academia, in the mean of practical legal tools, also to a certain extent haspromoted the national science and technology program research output and application. In Japan, learningfrom American legislation, they have implemented "assigning ownership" on IP ownership andapplication, while still having its national rights intervention remained, which the government-run agentplayed an important role in practice. This has introduced a new subject into assigning regulation, to someextent, working as remedy for the downsides of the "assigning ownership".Reflecting on current IP ownership and application of national science and technology programs, it isfound there are some issues regarding all parties’ rights and obligations within the regulations need to besolved: in term of the programs contractors, while having been "assigned ownership", they haven’t beengiven essential corresponding responsibilities on intellectual property output and intellectual propertytransformation; in term of the funders (state), the subject, condition and method in implementing themarch-in-rights are still ambiguous, also, regulations need to be made on jointing between themarch-in-rights and the compulsory licenses in Patent Law. Since the trend is diversified participation ininvestment and R&D cooperation, it is unavoidable that there will be conflicts between “autonomy ofwill” of the other participants and national intervention, where consideration and balancing on regulationsare essential.To solve these problems, this thesis has proposed a specific solution, on basis of the reference of otherdeveloped countries: firstly, to release some regulations on IP ownership and application of nationalscience and technology programs, where invent extra regulation on intellectual property output andintellectual property transformation of programs contractors. Secondly, proposed a series of elaborationson government’s March-in-Rights, Also, proposed some regulations on information publicity as well as IPauction&exchange；Finally,suggested essential compulsory regulations and designed comparativelypractical guideline for contractual conduct within diversified investment and research cooperationprograms.