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Intellectual Property Rights in China. Zhenqing Zhang
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isbn 9780812295702
Автор произведения Zhenqing Zhang
Жанр Юриспруденция, право
Издательство Ingram
The development of China’s science and technology during the early period of the Mao era did not stop with those exciting slogans. In 1949, there were fewer than 40 scientific research institutes and fewer than 50,000 technological professionals in China. In 1965, however, China boasted 2.46 million science and technology professionals and 1,714 professional scientific research institutes.14 Starting from scratch, China built a science and technology system that encompassed such key fields as material science, geology, communication, metallurgy, and chemical engineering.
However, the development of Chinese science and technology in the 1950s and 1960s was guided under a Soviet model. Under that model, protecting the result of technological innovation as private property was diametrically opposed to the notion of socialist public ownership. The products of intellectual invention or creation belonged to all members of the larger society rather than the individual creators. A Beijing-based IPR scholar made a thorough analysis of the prevalent ideology governing Chinese science and technology sector in the 1950s:
Did you notice a common feature of the blood-burning slogans cited by the Chinese top leaders [during the Mao era]? Be it “Fight the battle of science and technology” or “March towards science and technology,” there was a military connotation in these slogans. This means that the Chinese top leaders still regarded technological innovation as a cause similar to their revolutionary enterprise. They just won a revolution. They were so familiar with and so good at revolutionary mobilization. Is there a place for individual benefits in a revolutionary army? Of course not! However, the point is that science and technology professionals were different from revolutionary soldiers. It took the Chinese people quite some time to realize that.15
According to the recollection of an electrical engineer,
When Mao Zedong called upon the Chinese people to “march towards science and technology,” I was a college student. At that time I felt as if my blood was burning. Our country had been poverty stricken for so many years. I was willing to sacrifice anything to make our country stronger. The claim of individual benefits should be considered a shame for many of us. We were educated that we should attribute any personal achievement to the great Party and the great leader.16
Under that policy environment, protecting technological innovation as private property was heretical in the eyes of the Chinese decision makers. That inevitably impacted Chinese patent legislation in the Mao era.
The Rise and Fall of an Incipient Patent System in China, 1949–1976
Throughout my field research on the Chinese patent regime during the Mao era, I did not encounter much historical record of the debates and controversies about the adoption of those legal arrangements. An analyst at the SIPO offered me a reasonable explanation: “It came as little surprise to me that there were hardly any debates during the adoption of patent laws in the early years of the People’s Republic. That is not because everybody agreed to protect technological innovation as patents. Instead, that is because the issue of patent was too trivial to arouse any debates during the Mao era.”17 The analyst’s claim is well supported by the evidence from the legal texts of Chinese patent regulations in the Mao era.
Months after the establishment of the People’s Republic, the Chinese government adopted the Provisional Regulations on the Protection of Patent Rights adopted in 1950, known as the 1950 Provisional Regulations (Baozhang Faming Quan yu Zhuanli Quan Zanxing Tiaoli).18
However, a close reading of the 1950 Provisional Regulations reveals a deeply rooted contradiction. First, the crux of the 1950 Provisional Regulations was that patent rights were not protected as the private property of the inventor. Although the 1950 Provisional Regulations granted both proprietary patent rights and nonproprietary financial rights (Articles 6 and 7), Article 8 provided that the invention right (faming quan) is only granted if the inventor works with a factory, minefield, scientific research organ, or other research institute. Since these branches handled the majority of scientific research activities in China during the 1950s, invention rights took a de facto precedence over patent rights, although they were given equal weight on paper.
Second, Article 14 provided that “if the central government principal organ deems it necessary for inventions or patent to be transferred to the State for the latter to use and manage, it may ask patent right to be transferred to the state upon consultation with the patent holder.”
Under that article, the already vulnerable patent right was subject to the state’s seizure if the latter deemed it necessary. Last but not least, Section 3 of Article 7 provided that “others shall not utilize the invention without the authorization of the patent holder; those who break the law shall compensate the patent holder’s loss.” Article 12 further specified five situations under which patent infringers shall be subject to civil or criminal punishment. However, the following important aspects were not provided: (1) how the patent holder’s economic loss should be calculated and (2) who is responsible for enforcing the law in cases where patent infringement happens.
With those inherent defects, the 1950 Provisional Regulations were seldom used. Before the 1950 Provisional Regulations were replaced by the Provisional Regulations on Awards for Inventions, Technical Improvements, and Rationalization Proposals Relating to Production in 1954,19 known as the 1954 Regulations, only four patents and six invention certificates were approved. In fact, all the four patents were granted in 1953.20 In that sense, the 1950 Provisional Regulations hardly functioned during their short life span.
In 1963, China issued the Regulations on Invention Awards (Faming Jiangli Tiaoli) and Technological Improvement Awards (Jishu Gaijing Jiangli Tiaoli), also known as the 1963 Regulations, to replace the 1954 Regulations.21 By then, China had already established a full-fledged planned economy model dominated by socialist public ownership. The notion of granting property rights to individual inventors was ideologically inconsistent with the predominant socialist ideology at that time. As the title of the 1963 Regulations revealed, the term “patent” was replaced by “invention” and “technological improvements.” Inventors were deprived of their patent rights to the invention. The key provision in the 1963 Regulations regarding ownership of the invention is laid out in Article 23: “All inventions are the property of the state, and no person or unit may claim monopoly over them. All units throughout the country, including collectively owned units, may make use of the invention essential to them.”
Section 4 of both the 1963 Invention Regulations and 1963 Technological Innovation Regulations implemented a system of nonproprietary monetary awards for scientific inventions. However, in practice, the financial reward warranted by those two regulations did not materialize. According to the memoir of Wu Heng, then vice director of the Chinese State Science and Technology Commission, “During the over 2 years between 1963 and early 1966, the year when the Cultural Revolution broke out, 296 invention certificates were issued by State Science and Technology Commission. However, we neither awarded prize nor convened a national-level conference, except that we mailed invention certificates and medals to the inventors. Our country’s first prize-awarding conference for scientific invention never materialized as we planned.”22
The 1963 Regulations were already a serious step backward on patent protection. The deadliest blow to China’s incipient patent regime came from the Cultural Revolution. The Cultural Revolution, a nationwide turmoil caused by internal strife within the Chinese top leadership, broke out in 1966 and plagued China until 1976. During the ten years of turmoil, radically hardline ideology dominated the country’s legal and economic activities while the country’s formal legal system and most government administrative agencies were completely disintegrated.
The Cultural Revolution exerted a disastrous impact on China’s incipient patent regime. In the realm of science and technology, even the system of nonproprietary invention certificates and monetary rewards was terminated. Chinese science and technology professionals were regarded as part of the “bourgeoisie