IPR - Intellectual Property Panorama
1. Intellectual Property Basics
1.1 The concept of intellectual property rights
IPR ( Intellectual Property ) means a natural person, legal person or other organization created by natural persons through intellectual work intellectual achievement, recognition of rights and rights under the law.
Intellectual property is a civil law subject to intellectual creativity and commercial markings enjoy the exclusive right to disposal. China's first use of the concept of "intellectual property" in 1973 Nian
1.1.1 World Intellectual Property Organization ( WIPO ) definition of intellectual property rights
1967 Nian 7 Yue 14 signed, 1970 Nian 4 Yue 26 day ( Intellectual Property World ) entered into force , "the Convention establishing WIPO" to " intellectual property " made the following definition of:
① rights and literary, artistic and scientific works relating to (refer to copyright or copyright);
② and performing artists performances, phonograms and broadcasting rights (referring to copyright neighboring rights );
③ with the invention in all areas of human creative activities relating to claim (patent rights);
④ and scientific discoveries related rights;
⑤ and rights related to industrial design;
⑥ rights associated with trademarks, service marks, trade names and other trade marks (trademarks and other trade mark rights);
⑦ and the right to prevent unfair competition related;
⑧ all intellectual creations from industry, science and the field of literature and art of the rights arising from the activities.
1.1.2 "Agreement on Trade-Related Intellectual Property Rights" ( of the TRIPS ) 1995 Nian 1 Yue 1 effective date, the greatest impact, involving patent protection on 1 Tiao Dui " intellectual property " range made the following definition:
① Copyright and Neighboring Rights
② trademark
③ Geographical Indications ( ie appellation of origin )
④ industrial design rights;
⑤ patent
⑥ Integrated Circuits (topography) right
⑦ information undisclosed ( trade secrets )
Reasonable limitation of powers principle
The new proposed principle is the principle of most favored treatment
Conventions were not kept is "Universal Copyright Convention"
By the WTO management
1.1.3 Summary For all types of intellectual property rights
Copyright and neighboring rights ; personal rights + property
Trademark rights; property rights, possibly indefinitely, industrial property
Geographical Indications ( ie appellation of origin ) ; property rights
Industrial design rights;
Patent rights ; property rights, industrial property rights (including the right to creative achievements (including the right to inventions, copyrights and trade secrets), identifies the achievement of rights (trademark, trade name rights and combating unfair competition and the right))
Integrated Circuits (Topography , the United States said the mask work ) rights; integrated circuit layout-design, including the right of reproduction, commercial exploitation rights.
Undisclosed information ( trade secrets ) exclusive rights. Registration is not required can be obtained. property
1.1.5 narrow and broad intellectual property:
Broad intellectual property rights may include all human intellectual and creative achievements namely WIPO scope delineated, but for protection of content is established by national law. For example: " right of discovery " . On the division of generalized intellectual property rights , but also according to 1992 year standard Tokyo International Conference Protection of Industrial Property, Intellectual Property will be divided into " creative results right " ( including invention patent rights, the right to integrated circuits, new varieties of plants, Know-How technology right ., industrial design rights, copyrights, software rights, etc. ) and " identification markers rights " ( including trademark , trade name right, right and other identifying signs relating to unfair competition. ) two categories. Of course, identifying signs also permeated the intellectual creation, but functional, form of expression focus is different. Intellectual Property narrow , refers to industrial property and copyright ( ie copyright, trademark and patent rights ) . The book rights to produce legal basis as the division standard . Patent intellectual property narrowly.
============================================================
2. Intellectual Property scope and variety
Intellectual property is an open concept, with the development of science and technology, the scope of intellectual property will continue to change.
WIPO has made two fundamental provisions of the scope of protection of intellectual property.
With the kind of intellectual property will also expand the concept and scope vary, no longer limited to patents, copyrights and trademarks several traditional intellectual property, also including trade secrets, integrated circuit layout rights, plant variety rights , geographical indications.
=============================================================
3 . Character of Intellectual Property
(A) intangible : intellectual property rights essential nature, complexity
(B) the proprietary nature : it can give people power line, also known as the monopoly.
Intellectual property without the owner's permission, specified territory, no one may make use of this right.
Intellectual property without the owner's permission, outside the prescribed area, others can take advantage of this right.
(C) Regional
In a country valid or invalid, the States do not necessarily valid or invalid
(Iv) the timing ( trade secret rights do not have a time limit )
(E) the reproducibility
=============================================================
4 , the nature of intellectual property rights
Intellectual property rights are the rights recognized and protected by a legal, it is a private right. Intellectual property law is its primary attribute. Information protection
Intellectual Property and the Public Interest is a natural link.
Intellectual property rights is a major property rights , but also related to a part of personal rights .
The concept of intellectual property law
Intellectual Property Law is a general term for the creation of legal norms of human adjustment of social relations activities generated due to intellectual intellectual.
Intellectual property law is to regulate intellectual property acquisition, use, management and the general term for the legal system of protection.
TRIPS is developing into an independent form of trade.
Intellectual property as an important non-tariff barriers.
Intellectual property is the right Dui world, domination
Intellectual Property Law is a private law, domestic law, jus cogens
Three elements of the legal relationship of intellectual property rights
main body
Object (non-material objects ), not because of intellectual property rights expire and disappear.
content
============================================
Second, the formation and development of the Chinese legal system of intellectual property
And development (a) intellectual property rights in China
Constitution (b) China's IPR protection system
(C) intellectual property law protection category
Administrative organs (iv) intellectual property rights in our country
The legal system (e) IPR in China
And development (a) intellectual property rights in China
1 , resulting in the modern sense of intellectual property rights in China
2 , the development of China's intellectual property rights
3 , the characteristics of China's intellectual property legislation
Constitution (b) of China's IPR protection system
1 , of the Constitution is the fundamental law of our country;
2 , intellectual property law is civil law legal system legal department; the right of registration law
3 , international conventions concluded our country is an important part of domestic law;
4 , intellectual property agreement signed between China and relevant countries;
Such as China, the United States, Japan, European Union, South Korea, Russia, India Seven 2007 signed the "Joint Implementation Plan International Thermonuclear Experimental Reactor Agreement Concerning the International Fusion Energy Organization for the establishment of"
Sources of law of intellectual property
The fundamental law of intellectual property
NPC and its Standing Committee enacted laws
Intellectual property administrative regulations (including departmental rules and regulations)
IPR local regulations
Two High Court judicial interpretation on intellectual property rights
International conventions on intellectual property
(C) intellectual property law protection category
1. The intellectual property rights of domestic protection
Mainly for their citizens and legal persons created intellectual achievement ( information ) , according to the country's intellectual property laws, the ability to obtain legal protection and how to protect other issues. , The term of protection is legal
2. Foreign intellectual property protection
Divided into two categories : one is the citizens and legal entities created by the intellectual ability to obtain legal protection of intellectual property issues and how to protect overseas; the other is a foreign citizen and legal person created by intellectual achievements, whether in their home country obtaining intellectual property protection and how to protect problem.
3. International Protection of Intellectual Property
By the conclusion, modification, fulfillment of international treaties on intellectual property rights (including bilateral and multilateral agreements) to establish an international system of intellectual property protection to achieve.
The legal system (d) of the existing intellectual property rights
Mainland China's major intellectual property laws, regulations and administrative rules;
Supreme People's Court and Supreme Procuratorate relevant judicial interpretation;
China's participation in international conventions on intellectual property.
(Link: IP laws and regulations collection)
=============================================================
" Berne Convention " principle
- The principle of national treatment
- Automatic protection principles
- Copyright principle of independence
The right to protection of photographs of the economy no less than the creation 25 years
================================
International Convention on the Protection of Intellectual Property in China have added
"Paris Convention" by the WIPO management
"Berne Convention" by the WIPO management
"Integrated Circuit Convention"
"Universal Copyright Convention"
"WTO agreements"
China's first international convention to join "the Convention establishing WIPO"
"Patent Cooperation Treaty"
"Madrid Agreement Concerning the International Registration of Trademarks"
======================
The main contents of the Paris Convention: 1884 Nian 7 Yue 7 effective date.
1. The principle of national treatment.
2. priority principle. Invention applies to (the priority period 12 is months), trademark (priority period . 6 months), invention (priority period 12 is months), the design (priority period . 6 months)
3. The principle of independence.
4. compulsory license patent principles.
The use of the mark.
6. Well-known trademark protection.
7. trademark transfer.
8. temporary exhibition protection products. ( Temporary protection and ask a few specific questions ) applies to utility models, trademarks, inventions, designs. Since the right people to perform certain procedures, when the revocation of the patent, should be given no less than 6 times month grace period, so that the right people have the opportunity to make amends.
Other contents of the convention are: the establishment of the competent authority of industrial property management; inventor entitled to patent the signature on the book; the Member States are not allowed to different provisions of domestic law as grounds for refusing to approve some inventive enough or conditions of patentability patents declared invalid, as well as to provide for the trademark without the consent of the registered trademark and other issues. Authorize the Member States on the same patent is an independent association of importing the patented product can not be used as justification to cancel the patent. These are the member countries of the Convention on the minimum requirements ( minimum protection principles ) .
============================
==============================
Occur in addition to patent infringement disputes other disputes, should:
- Please adjust the local Intellectual Property Office
- To court
===========================================
The principle of transparency What is?
Transparency principle, refers to WTO Members on the impact of its trade laws, regulations, administrative rules affecting between and decisions, members of the government party or government department concluded in international trade policy agreements already in force, and related judicial decisions, should be published promptly, not released shall be subjected shall be taken to improve the import and export goods tariff rates and other measures in advance before publication; these should also be laws, regulations, trade measures and changes in circumstances promptly notify the world Trade organization, WTO so that other members of governments and traders to timely aware of these laws, regulations or measures, and decided to make their own trading activities according to the situation.
=================================
Berne Convention: to copyright protection
Rome Convention: involving neighboring rights protection, it is referred to as "Protection of Performers, Producers of Phonograms and Broadcasting Organizations Convention", and by the WIPO management.
================================
China's first legislation on intellectual property protection, "People's Republic of China Trademark Law"