The difficult course of the intellectual property regime (order)
At the current stage of its history, china was working to transform its economy from a resource-dependent economy to a knowledge-dependent economy. The knowledge economy is the intellectual property economy, in terms of the way wealth is expressed and the trade is traded. Consumable and up-to-date it products, personalized app software, convenient online payments, popular video works, efficient biomedicines, fresh and diverse vegetables or fruits, world-wide brand licences, and the constant transfer of technology are important objects and forms of today's domestic and international trade, which are not backed up by intellectual property rights, including patents, trademarks, copyrights, new varieties of plants or integrated circuit charting. The history of intellectual economic development in the united states has shown that sustainable intellectual property systems, such as science, technology and innovation, fair patents and a good rule of law are essential social elements. However, in the present era, chinese society is still faced with a wide range of economic and social problems, not only high levels of scientific and technological innovation are difficult to secure, but also a good rule of law system, which seems to be still passing through the historical “three gorges” (see liu, “the evolution of the united states patent system — the 1980 jurisprudence”, north great law review, no. 2, 2013). As a member of the intellectual property community, we need to focus on the construction of the intellectual property system. This is important, because without a rational and viable intellectual property regime as a basis, china's economy could remain at a low end for a long time。
However, it is not easy to construct and operate a rational intellectual property system. It is well known that intellectual property regimes operate in many ways, including in the creation, application, protection and management of intellectual property rights, which are interdependent, especially in the light of the critical importance of intellectual property rights, since the property and industrial value of intellectual property rights can be represented only if knowledge products (including products, works, products or services) enter the market and are widely accepted by consumers. This in turn contributes to the promotion of a virtuous circle in the functioning of the intellectual property system, making intellectual property more dynamic and giving intellectual property management and protection a clear objective. This means that it is only through market exchanges that the property and market values of intellectual property rights can be reflected and realized and that the intellectual property regime can function effectively as an intangible property rights regime indispensable to modern society. Otherwise, the mere possession of intellectual property rights (patents, trademarks or others) is a mere institutional, legal or “performance” game (e. G., a game in which the number of invention patents per 10,000 people in a given region will be targeted in a given year) because such an act may not only create social value, but may also entail serious social costs and thus undermine the rational foundations of the intellectual property regime。
Historically, after more than 30 years of rapid development in the early 1980s and the present, china's intellectual property system has become the basic property rights regime of modern society, and in the years to come it should move towards mature rational development, there is a need for legislators, regulators, industry and the public at large to take a more rational approach to intellectual property rights and their institutional construction. At this stage, however, the following issues are still prevalent, from micro to macro, with respect to the many aspects of the intellectual property regime: quantitative rather than qualitative; reiteration over regulation; preference for “ownership” over application; emphasis on research and development over industry; emphasis on “performance” over markets; emphasis on “activity” over systems (such as specialized activities); and emphasis on advocacy over law. These actions may contribute to creating bubbles in the output and ownership of intellectual property rights (iprs), resulting in inefficient and costly functioning of the ipr system and erosion of its rational basis. Whether at the enterprise level, industry level, regional level or national level, intellectual property systems operate at a higher cost, and when intellectual property rights cannot be associated with the value of their industry or market value, their existence not only loses the basis of legitimacy, but also leads to deformed social costs. The operation of a rational intellectual property regime should prevent the utilitarian policy of “intellectual property rights” in order to guarantee the market value of intellectual property and the original meaning of the intellectual property regime. If iprs are greenhouse plants and require extra care from regulators to survive, they will no longer have existential value and intellectual property regimes will be alienated。
This means that the current construction of china's intellectual property system has reached a stage in which greater prudence and reason are needed, so as not to be too quick to hinder social progress and economic development. While market failures are inevitable in the promotion of innovation and the preservation of sound intellectual property protection, at a time when governments (in this case a broad range of governments that include legislation, law enforcement and the judiciary) can intervene to address market failures, if governments go too far and intervene too heavily in the market, it is not only difficult to effectively promote the virtuous development of the intellectual property system, but may also have negative consequences, both in market failures and not necessarily in a better position for governments. Reasonable management of government and market boundaries is therefore an important issue that is particularly difficult for societies in transition, as it requires, at the very least, the simultaneous prevention of market disruption through negative government inaction and excessive involvement. Governments, as social regulators, should develop the concept of the effectiveness of a market economy and fully utilize its role in restructuring and solving economic and social problems. Governments should administer by law and adopt legitimate economic and legal means to safeguard the rational transformation of the intellectual property system, while cautioning against the negative consequences of administrative interventions that appear to have quick effects that may undermine the objectives of the intellectual property system。
Since the construction and operation of the intellectual property system is a complex social project, it requires the joint efforts of the legislature, the executive, the judiciary, industry and researchers. It should be recognized that despite its remarkable achievements in scientific research and in research and development and industrialization of high-tech technologies, china is generally still in a “developmental phase” compared with the world's major developed countries, such as the united states, and that managers, especially at the senior levels, should be aware of this, and should not be content to see that bubble-laden intellectual property ownership is already at the forefront of the world's leadership, “at the best of the world”. Recognizing the gaps, identifying the problems, putting them on the ground, and adopting a rational intellectual property regime, can truly contribute to the development of high-technology industries and economic transformation。
In this difficult and complex historical process, the value and mission of the chinese intellectual property community will be demonstrated. Intellectual property rights (iprs) of all walks of life relevant to the operation of the ipr regime, including inventors, authors, performers, industrialists, industrial investors, intellectual property agents, lawyers, examiners of patents or trademarks or new varieties of plants, intellectual property executives, judges, prosecutors, legislators, intellectual property law scholars, and the institutions to which they belong, constitute a broad intellectual property community (ip community). China's intellectual property system has been improving for more than 30 years, as evidenced by the growing intellectual property community, its rational development and functioning have become a new historical mission of the community. In this historic process, the intellectual property community, although it may have different perspectives or perceptions, or limitations of sectoral or local interests, or temporary compromises that have to be made, should have the same objective of building china's rational intellectual property regime and preserving its proper functioning。
Liu yin liang
2015. 12. 25
