Multidimensional Deconstruction Of International Protection Standards Of IPR & China's Related Policies And Strategies

Standards of International Protection for Intellectual Property, resulted from the internationalization of intellectual property law, is a constantly evolving system, the core of which has been transformed to TRIPS from Paris Convention for the Protection of Industrial Property and Berne Convention for the Protection of Literary and Artistic Works. On the one hand, as the core of Standards of International Protection for Intellectual Property, TRIPS can actually be regarded as the product of international coordination among countries in intellectual property system, especially as the result of internationalization of intellectual property law in major developed countries. The measures to achieve balance for public interests put forward in TRIPS, fall behind the measures adopted to protect intellectual property in the aspect of both quality and quantity. However, in general, the protection of intellectual property, though endows holders of intellectual property right extensive monopoly right, has such monopoly rights altered it into one with selection, time limit and exception, so that both the encouragement of creation and safeguard of public interest can be realired. Though in need of improvement, these standards haven't gone beyond the scope of fundamental conception of intellectual property law, and can still be treated as comparatively just system under the guidance of"balance of benefit"conception.On the other hand, in the process of implementation of Standards of International Protection for Intellectual Property, various negative impacts on public interest resulted, which have led to unbalance between the interest of some holders of intellectual property rights and that of public interest protection. After comprehensive analysis of TRIPS in the perspective of economics, development and reality, it is concluded that the problem existing in TRIPS is whether an internationally reasonable rule can also be effectively applied in China. Being born for the protection of intellectual property, TRIPS is actually expected to inspire creation, protect public interest, and serve for the progress of human society, and the balance between public interest and protection of intellectual property is also fully revealed in the clauses of TRIPS. Yet, due to the safeguard of the advantage in competition and the promotion of domestic large enterprises, an overtone to serve for the interest of developed countries is implied in TRIPS. Therefore, neither does it solve the problem of contradiction between domestic economic environment and the unified international standards, nor does it solve that between the different requirements of intellectual property protection in various countries and the internationally unified standards of intellectual property. Meanwhile, the specific rules, especially, those of limited rights formulated in TRIPS by the developed countries, with its inappropriate implementation, result in intensifying the degree of contradiction.In summary, for the lack of reasonability in implementation, domestically TRIPS causes tremendous contradiction between protection of intellectual property and safeguard of public interest, and tends to take the interest of developed countries into more consideration, which lead to serious unbalance between the interest of developed countries and that of developing countries. However, developed countries'undue pursuit of economic interest and that of national development in developing countries, while interacting with each other, developed into sharp contradiction, rather than the contradiction between the system of intellectual property and public interest in developing countries. In the present international community, the developed countries gain the upper hand in the struggle against this contradiction, so as to make it impossible for the pursuit of national development in developing countries, which in turn creates immense loss of public interest of developing countries, including that of China. More specifically, Standards of International Protection for Intellectual Property can be taken as a two-edged knife. Because the standards can not only protect public interest and that of holders of intellectual property right, but also promote the development of developing countries and help developed countries gain the maximized economic benefit. Only by fully recognizing this, can we effectively protect our country's interest. To find the best method to solve the problems, we analyze three doctrines popular in international theory field, and I think the following two ways are not the most suitable ways to solve the problem. That is, the set up, modification and abolition of the Standards of International Protection for Intellectual Property and the international coordination of international protection for intellectual property. The Standards of International Protection for Intellectual Property should be explained in favor of our country and then be applied. In detail, in the aspect of substantial law, Standards of International Protection for Intellectual Property appears the minimized standards for the protection of intellectual property and there is no restriction to its members who are acting according to the standards above the international standards. We can take advantage of the above two features to explain certain flexible clauses so as to narrow the protection scope of intellectual property to some extent, and adopt a series of strategies, that is to strengthen the protection of objects, to build and improve the effective mechanism of patent application, limit the range of intellectual property infringement, and set up an exception rules and compulsory license system. In procedural law, by making use of the feature of TRIPS, that is it prefers result to process, we should first concentrate on how to satisfy public need and then adopt measures to dismiss the encroachment. Meanwhile, enterprises'leading position in formulating policy of intellectual property should be fully recognized. By doing this, while effectively implementing Standards of International Protection for Intellectual Property, we are able to achieve balance between protection for holders of intellectual property rights and public interest, so as to maximize our country's benefit in the process.