The Legal Nature Of Sovereign Patent Funds And China's Counter-Measures

Since the birth of the sovereign patent fund,doubts about whether it will become a state-sponsored "patent troll" are heard.However,what are the sovereign patent funds for questioning rationally? Compared with sovereign funds and general patent funds,the most important question is whether the existence of the subsidy and countervailing measures agreement will become a secret way for the government to subsidize domestic technology companies.In the context of the existence of sovereign patent funds in China,if there is a possibility of facing countervailing charges in the future,how should we deal with them? In view of the above problems,the main body of this paper is divided into four parts.The first part mainly deals with some basic situations of sovereign patent funds.The first is the concept and significance of the fund.It is generally believed that the sovereign patent fund is an investment fund with the state financial funds as the main body,or jointly established by private capital.The purpose is to purchase a patent portfolio patent pool and conduct a patent fund for global patent distribution.The significance of sovereign patent funds is mainly reflected in two aspects.On the one hand,it avoids the domestic enterprises from continuing to be harassed by “patent hooliganism”.On the other hand,it enhances its patent technology,improves patent conversion efficiency,and enhances international the right to speak on the patent trade market;Followed by the characteristics of sovereign patent funds,it is mainly combined with foreign countries that have established sovereign patent funds,including France,South Korea and Japan.From the practice of sovereign patent funds in these three countries,the funds all show the characteristics of government capital dominant and operationally influenced by the government;Finally,it refers to the disputes concerning sovereign patent funds in the relevant WTO system,particularly,whether it violates the anti-subsidy obligations under the Agreement on Subsidies and Countervailing Measures.The second part mainly introduces the background of the Agreement on Subsidies and Countervailing Measures,the form of subsidies and the constituent elements of the financial subsidies.Specifically,the constituent elements of the subsidy determination include six forms: the form of subsidy,the method of subsidy,the identification of the subject,the identification of the benefit,the analysis of the specificity,and the identification of the industrial damage.By combing the elements of the relevant subsidy identification,it refers to whether the relevant business activities of sovereign patent funds constitute a subsidy.The third part is based on the provisions of the Agreement on Subsidies and Countervailing Measures,which determine whether the constituent elements of government subsidies constitute subsidies for sovereign patent funds.In the form of subsidies,the relevant business operations of sovereign patent funds,including the provision of purchases,transfers,grants of patents,and investment in technology enterprises,formally constitute financial subsidies;In terms of subsidies,sovereign patent funds meet the two provisions of the provisions.Subsidies include direct or potential transfer of funds,provision of goods or services other than infrastructure,and purchase of goods;In terms of subject identification,there are different views based on the jurisprudence of the WTO dispute settlement mechanism,which also leads to the nature of the subject.The difference in judgment.Among them,according to the "government control theory",the fund meets the criteria for the recognition of "public institutions" in the Agreement on Subsidies and Countervailing Measures;The sovereign patent funds disclosed today cannot reach a definitive conclusion,but In theory,there are cases of low-cost transfer of patents and low-interest loans.Therefore,if such a situation occurs in the future,the requirements in this respect are also met;In the determination of whether or not there is specificity,the object of the main transaction of the sovereign patent fund It is a domestic technology enterprise,so it has strong specificity in terms of region and industry type;Finally,it refers to industrial damage.Although this is not a requirement for determining whether it constitutes a subsidy,it is related to whether the subsidy is stable,but the situation that is also contrary to the reality is not enough to explain the formation of industrial damage identification.Therefore,in the current practice of the operation of foreign sovereign patent funds,the current evidence is not sufficient to show that the relevant business practices constitute the government subsidies stipulated in the Agreement on Subsidies and Countervailing Measures,which is currently for sovereign patent funds.The reason for the counter-subsidy lawsuit is zero.However,in the future development of the fund,the possibility of being filed against countervailing lawsuits cannot be ruled out in theory.The following section will explore how our sovereign patent funds are prepared for the future.The forth part is mainly about the situation of the three major sovereign patent funds currently existing in China and the suggestions on how to deal with countervailing lawsuits in the future.For the time being,China's three sovereign patent funds,including Ruichuang,Beijing Key Industry Intellectual Property Operation Fund and Sichuan Intellectual Property Operation Fund,have the same characteristics as foreign sovereign patent funds,that is,government capital dominates.It is greatly affected by relevant government policies when conducting business.Therefore,in view of the current fund development situation,in order to cope with the countervailing lawsuits that may be encountered in the future,the author believes that the government capital can be diluted to ensure the independent operation of sovereign patent funds,to relax the scope of sovereign patent fund transactions and to strengthen sovereign patents with other countries.The cooperation of the fund to ensure the troubles that our sovereign patent funds may encounter in the future.In addition,in the author's point of view,whether from the origin of the sovereign patent fund or the future avoidance of the fund as a subsidy tool,the way out for the sovereign patent funds of all countries should be to achieve a win-win situation by strengthening mutually beneficial cooperation.