The Study On Intellectual Property Barriers To Trade

Knowledge-based economy and economic globalization are two basic characteristics in our age. With the rapid development of knowledge-based economy and economic globalization, intellectual property is increasingly becoming a strategic resource in national development and the core elements of international competitive power. It is playing more and more important role in economic and social development. WTO is committed to make all members reduce tariffs and abolish discriminatory treatment and other trade barriers. Many trade barriers have been regulated correspondingly, but there are no corresponding regulations on intellectual property barriers. With the development of science and technology and the improvement of international intellectual property protection, there are more and more IPBT(intellectual property barriers to trade) set by developed countries on developing countries by taking use of their technical advantage to abuse intellectual property.Since the 21st century, with accumulation of capital and progress of technology, China's export products are shifting from labor-intensive to high-tech. However, it is more possible for china's companies to conflict with patent owners of developed countries when the technology content of export products is increasing, especially at present most companies lack independent IPR(Intellectual property rights) in China. They are more vulnerable to IPBT set by the developed countries. With the rapid development of China's export trade, endless intellectual property litigations rain in, from lighter to energy-saving lamps; from the battery to the phone; from air conditioning to car; from TV to computer; from DVD to MP3, etc.. Many Chinese enterprises have encountered IPBT set by multinational enterprises. Facing a flood of intellectual property disputes and high IPBT erected by developed countries, it is a very significant and pressing subject to make an in-depth research on this new form of trade barriers and make an in-depth analysis on its impact on China's export and to find out an effective way to break through them.This dissertation is composed with eight chapters.The first chapter is an introduction. In this part, the author firstly makes an analysis on the background and significance of the topics, then makes a carding and a summary on the related literatures at home and abroad. At last, the author gives a brief introduction on the content, research ideas, research methods and innovation of the dissertation. The second chapter is about the meaning of IPBT. Beginning from the concept of barrier, the author finds out the shortcomings and issues in the existing concept of trade barriers and put forward his own understanding on the basis of the concept of trade barriers in existing legislation and relevant literatures. Then, the author gives a definition on the concept and scope of IPR and analyzes the characteristics and functions of intellectual property. On the basis of an analysis of two basic concepts (trade barriers and IPR) and previous studies, the author puts forward his own definition and makes an analysis on the differences of view of IPTB between developed and developing countries. The forms of IPBT are briefly summarized and analyzed in this chapter based on previous studies, and then ten characteristics of IPBT are presented and analyzed.The author makes research and analysis on the three specific forms of ITBT from the third chapter to the fifth chapter.Chapterâ…¢is about IPBT formed by the combination of IPR and technical standards. In this chapter, the author firstly discusses the classification of technical standards on the basis of the concept of standards and technical standards, then makes an analysis on the new phenomenon of the combination of IPR and technical standards in the international economy beginning from the analysis on the evolution of the relationship between IPR and technical standards.The author discusses the reason of the combination of intellectual property and trade barriers. On this basis, he analyzes the effect of trade barriers produced by the combination of IPR and technical standards.The author regards that the combination of IPR and technical standards will be coupling the power to produce a strong effect of trade barriers. In the next part the author makes an analysis on the legal issues arising from the combination of IPR and technical standards. On this basis, the author constructs a simple model for resolving the issues and carries out an empirical analysis.Chapter IV is about the border protection of intellectual property. Firstly the author makes an introduction on the origin and international legislation of border protection of intellectual property. Then customs protection systems of IPR in the EU and the U.S. are introduced in detail. On this basis, the author compares the customs protection systems of IPR in the EU and the U.S. and discusses similarities and differences between them. The dissertation discusses the reasons why IPR customs protection becomes trade barriers. As the U.S.337 Clause is a typical IPBT, it is introduced and analyzed in this section. Firstly the author introduced its content of entity and proceedings and its remedy measures. On this basis, the author summarizes the main features of 337 procedures. Finally, the irrationality of U.S.337 Clause is analyzed.Chapter V is about the abuse of IPR. Beginning from the definition of abuse, the author firstly gives an analysis on the interpretation about the abuse of IPR made by native scholars, then gives his own understanding on the abuse of IPR. On this basis, the author makes a specific analysis on the several common forms of abuse of IPR, including its abuses in IPR applications, intellectual property licensing and intellectual property relief. The author illustrates them by using specific cases. Finally the author makes an introduction on the legal regulation on abuse of IPR made by international convention and major states such as the United States, European Union, Japan and China.Chapter VI is the political and economic analysis of IPBT. There is a profound political and economic background on which IPBT is formed, The author makes analysis from four aspects:the development of knowledge-based economy and international trade trends; the policy response to the decline of U.S. hegemony; multinational corporations plays an important role in the setting of IPBT; it is the tool that developed countries maintain the old international economic order. Then the author makes an economic analysis on mechanism of IPBT. Like other trade barriers, there are two mechanisms:the number control mechanisms and the price control mechanism. On this basis, the author makes an empirical analysis on trade effects of IPBT using an economic model. Then the author makes an empirical analysis by taking our DVD industry as an example. In order to find out the nature of IPBT, the author makes a reflection on intellectual property system, which is the basis of the current IPBT, and raises ideas for remodeling the current intellectual property system under the "Harmonious World" idea.Chapter VII is about the current situation, problems and countermeasures of IPBT encountered in China's export trade. In this chapter, the author firstly introduces several forms of major IPBT encountered in China's export trade, then analyzes the main problems when we are facing IPBT, finally corresponding countermeasures are proposed.Chapter VIII is about the results of the Research and outlooking. In this chapter, the author makes a conclusion and suggests the future research directions.As for research methods, the author uses several research methods as follows: cross-disciplinary research method; method of combination of theoretical analysis, economic model and Case Study; "abstract-concrete-abstract-concrete" approach; comparative analysis.On this research, several conclusions are drawn:First, economic globalization and knowledge-based economy makes intellectual property an important tool for international competition. In this context, IPBT will become a kind of important international trade barriers. Developing countries have to face this reality.Second, IPBT is a new special trade barriers. Compared with other trade barriers, IPBT has its own properties and characteristics. At present, IPBT has not caused due attention from academics and practitioners. The research is not enough and understanding is rather vague and information statistics and analysis of IPBT is insufficient.Third, seemingly IPBT is a problem of intellectual property protection, but in essence it is an issue of market competition and market share. IPBT is trade protection measures taken by multinational companies in developed countries on the companies in developing countries.It is a tool that the former prohibits the progress of the latter. In the competition of IPR, developing countries is at a disadvantage position.Fourth, it is not accidental that IPBT comes into being, which has a profound political and economic background.Fifth, WTO strengthens protection of IPR, but lacks regulation of IPBT, which contributes to the abuse of IPBT. International community should consider amendments to IPR pact within the framework of WTO agreements and make rules to regulate IPBT.Sixth, at present, the world IPR system are being alienated, which should be reconstructed under the idea of "Harmonious World".The basic aims is the balance of interests between the developing and developed countries, between the IPR owners and the social public.Seventh, China is a big developing country and is facing more and more IPBT in the process of rapid development of foreign trade. There are not only external but also its own factors, China's enterprises should enhance the independent innovation capability to answer to the IPBT set by developed countries.The new ideas of this dissertation mainly lies in the following points: First, on the basis of conducting a comprehensive analysis, the author redefines trade barriers and IPBT and put forward his own views. The author makes a detailed comparative analysis on the differences between IPBT and other trade barriers and reveals the ten features of IPBT.Second, the author makes a more comprehensive analysis on the political and economic causes of IPBT from different perspectives and angles, which makes us understand the essence of IPBT more deeply.Third, the author puts forward the idea that the international system of IPR protection need to be reconstructed under the guidance of conception of a "harmonious world". He makes a bold exploration on the ideas and ways of reconstruction.Fourth, as for the measures for answering to IPBT, the author regards that "Innovation Strengthening Trade" strategy should be taken in china. The author proposes China's foreign trade development strategy should be changed from "Science and Technology Revitalizing Trade" to "Innovation Strengthening Trade" to improve China's independent innovation ability and cope with more and more IPBT.