Study On Several Problems Of The Legal System Of Right Of Scientific Discovery

The right of scientific discovery, which is between industrial property rights and the property rights of literature and art, was soon born in the post-First World War and developed after the Second World War, had been the general concern of all countries in the world, and attracted scholars from a broad and intense discussion, and was recognized by the legislation of the former Soviet Union and other socialist countries. However, with the drastic changes in Eastern Europe and the Soviet Union, in the last few decades ago, almost no one legal system of right of scientific discovery was built at home and abroad, almost no legislative traces of right of scientific discovery could be found. In China, the legal system of right of scientific discovery is very rough, leading to the plight of dispute resolution of right of scientific discovery in judicial practice. Facing deficiencies of the legal system of right of scientific discovery in the world , this paper has investigated the historical development of the legal system of right of scientific discovery and made a comparative analysis of scholars who had put forward legislative proposals on right of scientific discovery after the right of scientific discovery was born, after reflecting on the relevant legislation in the former Soviet Union, which is the world's first to establish the right of scientific discovery in national registration system, this paper has studied several problems of the definition of scientific discovery, and the nature , access, exercise, limitations as well as legal protection of right of scientific discovery ,etc. and in the end ,it has proposed the specific conception of the legal system of right of scientific discovery.Specifically, this paper is divided into eight parts:The preamble presents the background of the study, and summaries the theoretical and practical significance.Chapterâ… has investigated the history of legal system of right of scientific discovery. This part sets out from three aspects: Firstly, it explores the process of born of right of scientific discovery and its legal status of the country; Secondly, it summaries and sums up the major countries' scholars' legislative proposals on right of scientific discovery in the world; Thirdly, it describes the relevant international organization' attitude over the legal protection of right of scientific discovery and their actions which they have taken.Chapterâ…¡focuses on the nature and definition of right of scientific discovery. Based on conclusion and a comparative analysis of the nature of right of scientific discovery dispute, this part analyses the reasonability of right of scientific discovery as an kind of intellectual property from six aspects: the inherent foundation, the theoretical foundation, the basis of its value, the human rights foundation, the basis of economic fundamentals and its practical foundation, etc. At the same time, after a comparative analysis of object of right of scientific discovery dispute, it makes a legal exploration and definition on the object of right of scientific discovery, scientific discovery , from five aspects: "designated area", "special significance", "objectivity", "scientific" and "novelty".Chapterâ…¢has discussed the achievement of right of scientific discovery. Based on a comparative analysis of the main dispute on the subject of right of scientific discovery ,this chapter re-defines the subject of right of scientific discovery; after reorganizing the discussion on the content of right of scientific discovery systematically, it develops and improves the content of right of scientific discovery; in response to the deficiencies of the existing achievement of right of scientific discovery, it has proposed a principle of automatic acquisition and registration, and advocates the establishment of national registration system.Chapterâ…£has discussed the exercise of right of scientific discovery and its restriction. On the basis of the aforementioned studies, this chapter analyses the issues of possibility of right of scientific discovery of the right to license and to transfer, and suggests that the license of right of scientific discovery should adopt a system similar to the compulsory license system under the patent laws, and to establish a system similar to the copyright collective management system under the copyright law, and it proved the possibility of the transfer of right of scientific discovery; At the same time, this chapter also discusses restrictions of right of scientific discovery from four aspects: the reasonable use of right of scientific discovery; effectiveness for a period of time of right of scientific discovery ;non-monopolistic use of right of scientific discovery and exercise of right of scientific discovery should not leak state secrets and commercial secrets.Chapterâ…¤has studied the legal protection of right of scientific discovery. Firstly, it discusses the issues about whether the right of scientific discovery should be protected by patent law and copyright law, it makes preliminary studies of some kinds of scientific discoveries that can be patented, and denies the protection of right of scientific discovery by copyright law; Secondly, it has made a new study on legal relief of right of scientific discovery from four aspects: the civil law, the administrative law, the criminal law and the Anti-Unfair competition law.Chapterâ…¥proposes a specific conception of the legal system of right of scientific discovery. Based on the study above, it advocates the establishment of an independent legal system for the protection of right of scientific discovery, and brings forward three basic principles of the legal system of right of scientific discovery, namely, the principle of efficiency -interest, the principle of automatic acquisition and registration as well as the principle of patent protection exceptions. In response to the lack of the legislation on right of scientific discovery in current domestic and international legislative system, this chapter proposes the specific design of the legal system of right of scientific discovery, as legislative proposals for building the legal system of right of scientific discovery in China.And the conclusion summaries the main viewpoints of this paper.