Research On The Intellectual Property Right Protection Problems Of The New And High-tech Enterprises

Since 1970s, the intellectual property right system of our country has entered the high-speed development period and some basic property right laws such as trademark law, patent law, copyright law and law against unfair competition, etc. have been promulgated. With the deepening of the reform and opening and economic development, the intellectual property right legislation has faced the unprecedented challenges and the continuously growing new demands shall be met. The intellectual property rights of our country are protected by not only the laws but also the administration. The relevant intellectual property right administrative departments are set in the Intellectual Property Right Bureau of China, the State Administration of Industry and Commerce and the State Copyright Administration, etc.The new and high-tech industry of our country, starting from 0 to the comprehensive development, has become the most rapid growing industrial department in the national economy and the development of the new and high-tech enterprises is closely related to the intellectual property rights and their protection. As far as the new and high-tech enterprises are concerned, how to promote the technological innovation of the new and high-tech enterprises so as to own the independent intellectual property rights and be able to effectively protect them has become the problem that shall be resolved. Without the support of the intellectual property right laws, there will be no strong-power mechanism for the development of the new and high technologies and the development of the new and high-tech enterprises will become the water without source. In addition, there exist many problems in the intellectual property right protection of the new and high-tech enterprises.On the above background, the State Intellectual Property Right Bureau of China entrusts the Intellectual Property Right Bureau of Changchun New and High-tech Industrial Development Zone to carry out investigation and research on the relevant problems of law execution of the new and high-tech intellectual property rights and present the policy suggestions. The author is directly engaged in the work. The paper is based on the above the investigation and research. As far as the new and high-tech enterprises and all the relevant governmental departments are concerned, the present situation, existing problems and intrinsic reasons of the intellectual property right protection of the new and high-tech enterprises are deeply analyzed, some advanced experience at home and abroad is taken for reference and the strategy and measures of protecting the new and high-tech intellectual property rights are presented from the strategic altitude and in the framework of the intellectual property right laws and systems, which is of great realistic importance.With the research on the intellectual property right protection of the new and high-tech enterprises of Changchun New and High-tech Industrial Development Zone for example in the paper, the present situation of the maintenance of rights the new and high-tech zone and some enterprises supported by the new and high technologies in the intellectual property right field in the zone are hackled and the reasons for the problems are concluded and analyzed, which provides the reference for the governmental departments and the new and high-tech enterprises taking the intellectual property right protection measures.The new and high-tech enterprises refer to those continuously carrying out the research and development as well as transformation of technological achievements in the national key supported new and high-tech field and establishing the core independent intellectual property rights of the enterprises and basing themselves on it to carry out the operating activities. They are the knowledge-intensive and technology-intensive economic entities. The intellectual property right refers to the patent right owned by some subjects such as citizen or legal person, etc. to the intellectual products produced in the intellectual creation or innovative activities that he or she is engaged in according to the provisions of laws. The intellectual property right is characterized as exclusivity and its object is the human intellectual creation. The interests obtained in the intellectual property rights are both economic and non-economic. Both of them are combined and inseparable. The intellectual property right is characterized as rationality and timeliness. According to the general rules of civil law, the intellectual property rights include copyright, patent right, right to the exclusive use of trademark and right of discovery and right of other scientific and technological achievements. In the Measures on the Designation of High and New Tech Enterprises newly promulgated, it is stipulated that the core independent intellectual property rights include inventions, practical and new appearance design patents not simply modifying the product drawings and shapes, software copyright, integrated circuit layout plan design patent right and new plant varieties, etc. compared with the general intellectual property rights, the intellectual property rights of the new and high-tech enterprises have their own characteristics.Changchun New and High-tech Industrial Development Zone has made some great achievements in the new and high-tech intellectual property right protection. In the recent 3 years, 1726 patents have been accumulatively applied for, including 832 invention patents and 906 authorized patents and it owns 2310 scientific and technological projects, including 392 projects reaching the world advanced level and 807 projects having realized the industrialization, with 372 patent technologies. It has become the core power for development of the new industrial group of Changchun New and High-tech Industrial Development Zone to carry out the strategy of intellectual property rights and improve the innovative capability of the enterprises and the strong engine for the innovation and development of the zone. Although Changchun New and High-tech Industrial Development Zone has reached to a certain level in the new and high-tech intellectual property right strategy, there still exist many problems. 4 new and high-tech enterprises of Changchun New and High-tech Industrial Development Zone are taken as the research objects in the paper, that is, Xiuzheng Pharmaceutical Group Co., Ltd., Hongda New and High-tech Group Co., Ltd., Changchun Yuheng Optical Co., Ltd. and Changchun Yidong Clutch Co., Ltd.There exist some prominent problems in the intellectual property right protection of the new and high-tech enterprises. The first is that the awareness of intellectual property right protection is weak, which is represented in the following. The quantity of the innovative achievements of the enterprises applied for the patents is small, the striking of the infringement upon the intellectual property rights of the enterprises is limited and there is generally lack of long-term intellectual property strategy and thinking. The second is that there exist difficulties in the maintenance and collection of evidence of the intellectual property rights, including no way to obtain the sales evidence, no way to find the pirating businesses and failure to collect evidence due to the dynamic network and variability. The third is that there exist the disputes over jurisdiction in the network infringement cases, for example, there exist disputes over the site of infringement and determination of the infringement subject, etc. The fourth is that the local protection is the protection umbrella of the enterprises infringing upon the intellectual property rights, the attitude of the local governments toward the intellectual property right protection is of strong utilitarianism and the local administrative and judicial executors are obvious partial in the execution. The fifth is that there exist some difficulties in the determination of the amount of compensation for infringement. There exist difficulties in the calculation of the interests obtained by the infringer on the one hand; there exist difficulties in the calculation of the loss of the infringed on the other one.There are a variety of reasons for the intellectual property right protection problems of the new and high-tech enterprises. On the whole, they include the reasons in the four aspects, that is, system, law, economy and culture. The crossing management in the system brings about the unsmooth intellectual property right protection, obscure protection subjects, common conflicts in the execution, asymmetric rights and liabilities of the administrative organs, low execution efficiency and weak force of execution. In the law, the laws and the participant subject range influence the intellectual property right protection, which is characterized as follows: the flexibility of the provisions of the laws is poor and the social participation in the legislation is low, which bring about that it is difficult to effectively carry out some articles of laws. In the economy, the economic titter-totter effect brings about that the violating enterprises rampantly infringe the rights. The enterprises violating the intellectual property rights have the low violating cost on the one hand; the intellectual property right maintenance enterprises have the high maintenance cost. As far as most of the new and high-tech enterprises are concerned, a big amount of input is needed for the appraisal of the technological products. As far as the compensation to be undertaken by the violating enterprise, the infringed enterprise often feels that the gains could not make up the loss. In addition, the expenses for the execution of the administration of the intellectual property rights are limited, causing the existence of problems. In the culture, the positive role of the social culture in the intellectual property right protection is low and the understanding of the intellectual property rights is insufficient, which has influenced the legislation of the relevant intellectual property right laws and law execution.The strategies of the intellectual property right protection of the new and high-tech enterprises are divided into 3 parts, that is, judicial strategy, administrative strategy and enterprise strategy. In the strategy of judicial protection, the amount of compensation for the intellectual property right dispute cases shall be increased, the applicable scope of the criminal law in the intellectual property right disputes shall be appropriately expanded, the judicial judgment mechanism of the intellectual property rights shall be perfected and the reform of the trial mechanism of the intellectual property rights shall be promoted. In the administrative protection of intellectual property rights, the good atmosphere of protecting the intellectual property rights shall be cultivated, the administrative guide of the intellectual property rights of the government shall be strengthened, the administrative protection system of the intellectual property rights shall be perfected, the executive level of the administrative protection of intellectual property rights shall be improved, the supervision and inspection of operation of the administrative protection system of the intellectual property rights shall be intensified and the matching and cohesion of the administrative protection with the judicial protection shall be correctly dealt with. As far as the new and high-tech enterprises are concerned, the relevant intellectual property right strategy shall be established by focusing on the innovative target, the publicity shall be strengthened, the awareness of protection shall be enhanced, the scientific research management system taking the improvement of the intellectual property rights shall be built and the cultivation of the intellectual property right personnel shall be strengthened so as to achieve the purpose of protecting the intellectual property rights of the enterprises.The intellectual property right protection of the new and high-tech enterprises, as the innovative approach, is of great importance to the new and high-tech industrial development and law research. Based on the practical investigation of the intellectual property rights of the enterprises of Changchun New and High-tech Industrial Development Zone in the paper, the problems and reasons of the intellectual property right protection of the new and high-tech enterprises are analyzed, the intellectual property right protection strategies of the new and high-tech enterprises are presented so as to provide some references for the intellectual property right protection and legal construction of the new and high-tech enterprises. In the meanwhile, it is seen that the practice of right maintenance of some enterprises at present is discussed in the paper, some defects are unavoidable and it shall be concluded and perfected in the practice because industrial characteristics and development stages of the new and high-tech enterprises are different and the infringement modes are diversified. In order to develop the new and high-tech enterprises and improve the intellectual property right protection level, it is anticipated that the paper will be able to become a good starting of research and bring about that a great number of relevant persons will pay attention to the problems.