What is the international protection of patent rights?
1. Paris Convention for the Protection of Industrial Property
The Paris Convention is the most important international convention for the protection of industrial property rights.
The Paris Convention has a total of thirty articles, the first twelve Articles are substantive provisions, and the last eighteen articles are administrative provisions, applicable to the widest range of industrial property rights. Its protection objects include: Patents (invention patents), utility models ('small patents' in a few countries), industrial designs, trademarks, service marks, manufacturer names, origin marks or names of origin and the suppression of unfair competition. Only the content related to patent protection is introduced here.
1. The principle of national treatment
The Convention stipulates that in terms of protecting industrial property rights, each member country must The protection granted to its own citizens is equally extended to citizens of other member states and to nationals of non-member states who have a residence or a real and effective industrial and commercial business in a member state.It can also enjoy the same treatment and protection as member states. According to this principle, foreign patent applicants or patentees have the same rights and obligations.
2. Priority principle
Member states are obliged to give priority to the nationals of each other, that is, after a national of a member country files a patent application to another member state, within a certain period (twelve months for invention and utility model patents, and six months for industrial designs) ) files a similar application to other member states, it may request priority, as if the latter application was filed on the first filing date.
3. Patent independence principle
This refers to a national of a member state of the Convention regarding an invention. Although the patent rights obtained by several member states or non-member states are for the same invention, they are independent of each other and are protected and managed by the laws of their respective countries. Patent law is domestic law, and patents approved by one country are not binding on other countries.
4. Compulsory licensing principle
The Convention provides for compulsory licensing to prevent the abuse of patent rights. That is, when four years have passed since the date of patent application, or three years have passed since the date of patent approval, and the patented invention has not been implemented or has not been fully implemented without justifiable reasons, the national patent office of each member state may, upon the request of a third party, grant A compulsory license to implement the invention, and the person who obtained the compulsory licenseThe patentee should be given reasonable remuneration.
5. Other commonly observed rules
The Convention stipulates that all countries should abide by a certain patent grace period, That is, a grace period of at least 6 months is given for the payment of patent application fees and maintenance fees. The use of other people's patented technology on temporary transit vehicles is considered fair use. Patented technology contained in goods exhibited at officially recognized international exhibitions held in the territory of any Member State of this Convention shall be granted temporary protection equivalent to the priority period.
2. "TRIPS Agreement"
The content and characteristics of the TRIPS Agreement have been discussed in the introductory part of this course a brief introdction. The TRIPS Agreement is not a completely independent convention. Its operation depends on other international conventions and agreements, and it affects a country's reality mainly through the revision and implementation of domestic laws.
Section 5 of Part II of the TRIPS Agreement Patentable subject matter, rights granted, conditions for patent applicants, exceptions to patent grant, other uses without authorization from the right holder, revocation or invalidation, term of protection and reversal of the burden of proof for method patents.
1. Patentable subject matter
The agreement stipulates that patents can be granted to any inventions in all technical fields, whether products or methods, as long as they are novel, contain inventive steps, and can be used industrially. However, member states may declare that they are contrary to public order. and ethical inventions (including those necessary to protect human, animal or plant life or health or to avoid serious damage to the environment), or methods of treatment of humans and animals, or of animals or plants and biological methods for their production. However, The Agreement requires that each member shall provide for the protection of plant varieties through patents or an effective sui generis system or through a combination of both.
2. Rights granted
The product patentee has the right under the agreement to prevent third parties from manufacturing, using, selling, selling or importing the product for these purposes without its consent; The holder of a method patent may exercise the right to prevent third parties from using the method without his consent and to prevent the use, sale, sale or import for these purposes of at least products directly obtained by the method. In addition, patent ownership The person also has the right to assign or transfer his patent by inheritance and enter into a licensing contract.
3. Compulsory license
The agreement uses the words 'other uses without the authorization of the right holder', and stipulates in detail the general reasons, specific reasons and conditions for compulsory license. The agreement first requires that the implementation of compulsory license must be based on the member's legal Allows other uses of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government; secondly, the agreement stipulates refusal to trade, state of emergency, anti-competitive behavior, non-commercial public use There are five specific reasons for using and relying on patents; finally, the agreement stipulates 13 'provisions to be observed', including: the principle of case-by-case consideration, the principle of prior reasonable efforts, the principle of non-transcendence, the principle of non-exclusiveness and non-transferability, Meet the principle of domestic demand, the principle of restoration of the situation, the principle of reasonable remuneration, the principle of review, the principle of non-use when developing a second patent, etc.
4. The burden of proof for process patents is reversed
span>In civil litigation, the agreement stipulates that 'such as the subject matter of a patent If it is a method of obtaining a product, the judicial authority has the right to order the defendant to prove that its method of obtaining the same product is different from the patented method. 'Any identical product produced without the consent of the patent owner, without proof to the contrary, , it shall be deemed to have been obtained by the patented method'. In addition, the Agreement also makes corresponding provisions in Article 43 regarding 'enforcement'.
Regulations on the international protection of patent rights, above The article mainly brings you two international protection treaties, and now our country’s current patent law has been fully integrated with the TRIPs Agreement. It is also constantly integrating with other countries around the world and continuously strengthening the protection of patents. I hope the content compiled by the editor will be helpful to you. If you have other legal knowledge you would like to know, the Legal Savior Network also provides online lawyer consultation services. You are welcome to consult with lawyers on this website.
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