The hottest focus is on foreign intellectual prope

2022-10-22
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Focus on foreign intellectual property protection laws

the United States: protect all new things under the sun

there is a famous saying in the U.S. patent industry: "all new things under the sun can apply for patents."

after more than 200 years of development, the United States has formed an extremely effective intellectual property protection system for safeguarding its own interests around the world

the development of intellectual property protection system in the United States has experienced three stages: from the beginning of the founding of the people's Republic of China to the 1930s, excessive attention to patents led to monopoly; From 1930s to 1980s, antitrust excluded intellectual property protection; Since the 1980s, the global protection of intellectual property rights led by information technology

In 1787, the United States stipulated copyright and patent rights in Article 1, paragraph 8 of the constitution. The first patent law was promulgated in 1790, and the patent and Trademark Office directly under the State Council was established in 1802. So far, the United States has basically established a complete intellectual property legal system, mainly including: Patent Law, trademark law, copyright law and anti unfair competition law

in terms of patent management policy, one of the three pillars of the intellectual property system, the Bayh Dole act, which aims to define the intellectual property ownership and equity distribution policy of scientific and technological achievements produced by national investment, has become the most important milestone in the intellectual property protection policy of the United States

the current patent law of the United States was promulgated in 1952. The U.S. government's patent management policy embodied in the patent law has experienced three stages of development:

the first stage, the stage of patent ownership dispute (before 1963). During this period, there has been a debate about whether the patent right of the invention generated in the process of implementing the government contract should be owned by the government or retained by the contractor

the second stage, the government led stage (1963 to the late 1970s). Due to the need to weigh the public interest, the U.S. government has adopted a flexible principle on the ownership of patent rights, and made relatively general provisions, that is, when the government obtains the patent rights can better serve the public interest, the government obtains the patent rights, while in other cases or general cases, the contractor retains the patent rights

the third stage is to promote the commercialization and implementation of patents, especially the bedall Act enacted and implemented in 1980 and the subsequent federal technology transfer act

in order to promote the commercial implementation of patents owned by federal government agencies, in 1980, the U.S. Congress passed the Stevenson Wydler act, also known as the "federal technology transfer act". The bill aims to promote the cooperation between research institutions directly under the federal government and industry, and promote the transfer of patents owned by the federal government to the market. The act stipulates that "all companies, universities and research institutions can enjoy patent rights for inventions developed in cooperation with research institutions directly under the federal government, and the federal government reserves only one right to use them under certain circumstances."

the patent management policies of the United States arising from government contracts have the following main aspects:

1 Generally speaking, in addition to the consideration of national security or better protection of public interests, the patent rights generated by government contracts are generally reserved by contractors equivalent to more than 50 million tons of frugal crude oil

2. In the case that the contractor retains the patent right, the government has the right to free use, the right to approve the transfer of invention patents, and the right to give priority to the development of domestic industry. At the same time, contractors who retain intellectual property rights have certain obligations

3. In the case that the contractor retains the patent right, the government has the "right to intervene" under certain conditions. When the following circumstances occur, the government has the right to require the contractor to transfer the right to use the patent: the contractor has not taken effective steps to implement the invention for a reasonable long time; The Contractor fails to meet the requirements of national security or public interest; The Contractor's use or transfer of the invention violates national regulations

4. The important premise to expand the scope of the patent retained by the contractor to enterprises and profit-making institutions is that the invention generated by the government contract has important commercial value, and the reasonable exercise of the patent right is conducive to the commercial application of the invention, and can better protect the interests of the government and the public

5. The management policy applies to all government agencies in the United States, including government agencies in the field of national defense and the military. Except that the technologies that need to be kept confidential in these departments are governed by the confidentiality law, technologies that do not need to be kept confidential, such as military to civilian technologies and general military and civilian technologies, should actively apply for patents and transfer implementation licenses, just like the civil departments

6. On behalf of the state, government agencies own and master patents for technologies in some special or important fields. However, with the increase of technological innovation and social technological reserves, and in order to make social technological resources better serve economic construction, the government's management policy on these patents is also developing in the direction of promoting their standardized implementation and transformation under the control of a strict management system

in terms of intellectual property protection, the United States mainly adopts judicial protection measures

the United States has established a multi-level judicial system, and the court of first instance jurisdiction for infringement cases such as copyright, registered trademark, patent, plant variety, integrated circuit layout design, etc. is the Federal District Court of the United States. Intellectual property dispute cases in the United States are generally heard in state courts. After the decision of the state court, the plaintiff and defendant can appeal to the Federal Circuit Court if they disagree. The decision of the Federal Circuit Court is final. Patent disputes in intellectual property cases are generally heard in the Federal Circuit Court, and appeals are heard in the appeals court of the Federal High Court

the government's protection of national interests, especially the interests of transnational corporations, is a major feature of the U.S. patent law. For example, the patent authorization disclosure system that is still being implemented in the United States makes all technologies that cannot be protected by patent law not available to the world, but they can obtain new technical information from the documents that have been published for 18 months after applying for patents in other countries; For another example, the pre invention system currently implemented in the United States is actually only suitable for American applicants

protecting American intellectual property rights overseas is one of the important tasks of American foreign policy. As early as the 1970s, the United States enacted relevant laws, the most famous of which is special section 301. The clause stipulates that the U.S. trade negotiators should submit an annual report listing countries that refuse to effectively protect U.S. intellectual property rights, as well as key countries. Within 30 days after the identification of key countries, the U.S. trade representative began to investigate the intellectual property protection of these countries, and made a decision on whether to take retaliatory measures within half a year, that is, it may implement import quotas, increase import tariffs, or cancel the MFN treatment

India: crack down on piracy with judicial punches

India's intellectual property protection has its own characteristics. It takes legislation as the guarantee, and the judicial, administrative and non-governmental parties actively interact and closely cooperate to build a unique intellectual property protection system

constantly updating and improving the law to make it in line with international treaties has become the main feature of India's realization of intellectual property protection

as an important basic part of intellectual property policy, India's intellectual property legal system includes copyright law, trademark law, patent law, design law, geographical indication law, etc. these laws have laid the cornerstone of India's intellectual property policy

1. Copyright law

India enacted the first copyright law as early as 1847. Since then, the content of "applicable to international treaties to which India is a party" has been revised many times. The copyright law, revised in 1999 and implemented in January 2000, has fully integrated India's copyright law with the agreement on trade related intellectual property rights (TRIPS)

India's copyright law is worth mentioning in terms of computer intellectual property protection and measures to combat piracy. The copyright law, revised in 1994, protects computer programs as literary works according to the requirements of trips, with a protection period of 50-60 years. It also gives the works of foreign authors the same protection as those of domestic authors, and empowers the Indian Copyright Bureau to deal with copyright infringement and piracy. It also stipulates corresponding penalties for Software Piracy: any use of pirated software will be severely punished. For example, illegal copying of computer software can be sentenced to 7 days to 3 years' imprisonment and a fine of 55000 to 20million rupees

2. Patent law

India's earliest patent and design law was formulated in 1859. After three major adjustments, India's patent law has fully realized the integration with t's closed-loop servo control system rips, which is composed of electrical controller, servo valve, load sensor, displacement sensor and computer

In 1970, the Indian Parliament passed the first patent law after independence. In order to make the patent law close to the relevant provisions of trips, India has made three major amendments to the 1970 patent law in 1999, 2002 and 2004. The revised version in 2002 sets the patent protection period as 20 years, and stipulates that the state can implement compulsory licensing of patents for reasons of public interest, national security, Indian tradition, public health and so on. The patent (Amendment) regulations 2004 promulgated in December 2004 stipulates that patent applications for drugs, agricultural chemicals and food will be accepted from January 1, 2005

3. The trademark law

since the first trademark law, the trade and commodity marks act 1958, India has gradually revised and issued the trademark law 1999. The main amendments of the trademark law are as follows: the scope of trademark registration has been broadened, "any mark of goods or services that can distinguish others, including charts, packaging, commodity shape and color, etc., can be registered"; Service trademarks and collective trademarks have been added; Implement the special protection and registration system of well-known trademarks; The application procedure is simplified, and multiple types of goods or service trademarks can be applied for in one application; The term of protection of registered trademarks shall be extended from 7 years to 10 years, and each renewal shall be extended for 10 years; An appellate body has been established; Expanded the definition of infringement, "those who use similar trademarks on the same kind of goods or services as registered trademarks, causing confusion, or there may be deception or confusion in the use of the same or similar trademarks on different kinds of goods or services" are all infringement, while strengthening the punishment, including increasing the prison term and fines; It is forbidden to take the trademark of others as the name of the manufacturer or part thereof; There are different requirements for the transfer of unregistered trademarks with and without goodwill

the interaction and close cooperation of judicial protection, administrative protection and folk protection have become the basic means for India to realize intellectual property protection

the protection of patents in India includes judicial protection, administrative protection and civil protection. 1. Judicial protection judicial protection is divided into civil relief and criminal relief

civil relief is a more effective means for India to combat intellectual property infringement, including several civil relief methods:

apply for a search warrant, that is, the plaintiff can apply to the court for a search warrant, go to the defendant's residence to raid and search all documents and evidence of the defendant, so as to prevent the other party from destroying evidence after being informed of the lawsuit

apply for temporary injunction before the court makes a judgment, the plaintiff can apply to the court for temporary injunction in order to prevent irreparable losses, and temporarily take measures including seizure, sealing up, freezing, etc. to ensure the most

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