Study On System Of March-in Right In The Transformation Of Scientific And Technological Achievements

Science and Technology Law China issued in 2007 introduced "march-in rights"as a mechanism to ensure the effective and sufficient transformation of financially funded scientific and technological achievements.However,the clauses of march-in rights in Science and Technology Law are too ambiguous.Both the substantive system and the procedural system lack detailed provisions,which lead to the clauses being caught in an embarrassing situation with insufficient implementation and no actual deterrent power.Therefore,how to establish and improve the system of march-in rights in the transformation of scientific and technological achievements has become a major practical issue that needs to be resolved urgently.This article discusses this issue and is divided into four parts.The first part introduces the overview of march-in rights in the transformation of scientific and technological achievements.March-in rights refers to the power of government to participate in and intervene in the transformation of scientific and technological achievements under the statutory or agreed conditions.As a public power,march-in rights will affect the interests of private entities.Legal basis of march-in rights is the legislative purpose of safeguarding the public interest and an important mechanism for maintaining the balance of interests in the patent contract.The second part is the legislative status and existing problems of march-in rights in China.Article 20 of the Science and Technology Progress Law is the main clause of march-in rights which stipulates the conditions and the manner for the exercise of march-in rights.However,there are two main defects of the march-in rights system,which are vague substantial contents such as the unclear subject,no flexibility and the ambiguous conditions,and deficiencies in procedural clauses such as simplex mode of start-up and a lack of exercise procedures.The third part is the investigation and evaluation of extraterritorial march-in rights system.United States,Japan and Taiwan all have established march-in rights system.The system of March-in rights in U.S.is relatively mature,and there have been five cases.While there are only substantive provisions in Japan which gives the government greater discretion,Taiwan's march-in rights is slightly different in terms of conditions of exercise.The fourth part is the proposal for march-in rights in the transformation of scientific and technological achievements in China.Focusing on the legal basis of march-in rights,it is proposed that the subject of power exercise should be clearly defined,and the conditions for exercising should be established.In the process construction,the way to start-up should be increased and the relief mechanism should be set up.