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China's Intellectual Property Management in Science and Technology: Present State, Problems and Proposals
2010-06-08
Tian Jietang
The creation and protection of proprietary intellectual properties in line with systems engineering requires the active cooperation from all government departments, which should jointly enhance their intellectual property awareness and introduce measures for intellectual property management so as to ensure the smooth implementation of the national intellectual property strategy. The science and technology departments are tasked to implement the national science and technology programs and develop the high-tech industries and to play decisive roles in the creation and application of intellectual properties. For this reason, these departments should strengthen intellectual property management and introduce intellectual property management rules in conformity with the new situation.
I. Present State of Intellectual Property Management in Science and Technology
With the gradual establishment and continuous improvement of its intellectual property system, China has made tangible progress in adjusting strategic principles, improving laws and regulations and highlighting intellectual property management in implementing the national science and technology programs and promoting the industrialization of high technologies.
1. A legal system is taking shape
In the area of laws, the Law on Progress of Science and Technology which was adopted in 1993 and amended in 2007 clearly defined the ownership, application and transfer of the intellectual properties of the projects of the national science and technology programs and foundations. For example, Article 20 provides: "The authorized project undertakers are legally entitled to the invention patents, the computer software copyrights, the exclusive rights of integrated circuit layout designs and the new plant variety rights formed by the projects of the science and technology foundations or the science and technology programs established with fiscal funds, except those involving state security, national interests and major social and public interests." Article 21 provides: "The state encourages the prior use in China of the intellectual properties formed by the projects of the science and technology foundations or the science and technology programs established with fiscal funds."
In the area of regulations, the General Office of the State Council, the Ministry of Science and Technology and other departments have promulgated many regulations and documents, including the Guidelines on the Strengthening of the Protection and Management of the Science and Technology-Related Intellectual Properties, the Regulations on the Management of the Intellectual Properties of the Research Results of the Projects of the National Science and Technology Programs and the Regulations on the Strengthening of the Management of the Intellectual Properties of the National Science and Technology programs. These documents clearly defined the ownership of the intellectual properties of the research results of the national science and technology programs and contained clear and specific requirements for the intellectual property work on all management links and all enforcers of these science and technology programs. The requirements for the management and protection of the intellectual properties of the program projects constituted a dynamic impetus to drastically increasing the output of proprietary intellectual properties in implementing the projects of China's science and technology programs.
On the basis of the above-mentioned national documents, regional science and technology departments have also introduced some regional laws and regulations. For example, Shanghai, Fujian, Zhejiang and other places have all introduced relevant laws and regulations to standardize the specific implementation of intellectual property management.
2. Management system for intellectual properties of science and technology programs are relatively sound and intellectual property outputs are visibly higher
In accordance with the above-mentioned laws and regulations, the science and technology departments have incorporated the contents of intellectual property management into the management systems and project contracts of all science and technology programs, put forward the target requirements for intellectual property outputs and defined the intellectual property management responsibilities of the management units, project undertaking units and project participants of the science and technology programs in the links of project application, acceptance, evaluation, execution and acceptance.
During the 10th Five-Year Plan period, the intellectual property output capacities of the national science and technology programs rose tangibly. Incomplete statistics indicate that the number of the patent applications of the main science and technology programs, including "863", "973", "Gongguan" (meaning tackle the hard-nut topics) and "Huoju" (meaning torch), rose at an average annual rate of 74.4% and the number of authorizations went up at an average annual rage of 51.6% (Based on the Outline of the National Intellectual Property Strategy, Intellectual Property Publishing House, 2008).
3. Intellectual property targets have been gradually incorporated into the evaluation, rewarding and affirmation systems
In their practical work, the science and technology departments have gradually incorporated the intellectual property targets into the evaluation, affirmation and re-examination of the high-tech industrial development zones, the corporate technological centers and the key laboratories, and taken the amount of intellectual property ownership and the related protection and management systems as an important criterion for the status affirmation of high-tech enterprises and the evaluation of science and technology rewards. At the same time, the reform of the ownership system of the research institutions in transition and the experiment on equity-based incentives have actively implemented the intellectual property reward policies and gradually improved the evaluation system of the intellectual property targets. For example, the Regulations on the Management of the Affirmation of the High-Tech Enterprises amended in 2008 emphasizes that the enterprises must have proprietary intellectual properties over the core technologies of their main products (services). Otherwise, they cannot be affirmed as high-tech enterprises.
4. Enterprises and research units improve intellectual property systems and the number of intellectual properties has increased markedly
The enterprises, research institutions, universities and other innovators have seen their numbers of intellectual properties rising visibly. The institutions of higher learning directly under the Ministry of Education applied for 15,020 patents in 2007, with 81.9% being invention patents. The Chinese Academy of Sciences applied for 22,521 invention patents during the 1998~2007 period, which was 8.84 times the total patent applications before. In 2007, the Chinese-invested enterprises based in the national high-tech industrial development zones applied for 55,252 patents, of which 29,166 were invention patent applications, and accounted for over 70% of the total invention patent applications (Based on the Outline of the National Intellectual Property Strategy, Intellectual Property Publishing House, 2008).
5. Cultivate and develop technology market and increase intellectual property transactions
The statistical data of the China Technology Market Management & Promotion Center indicate that a total of 220,868 technology contracts were signed nationwide in 2007. In particular, 109,740 contracts or 49.7% of the number of total national transactions involved the intellectual properties of patents, computer software and bio-pharmacy. The value of transactions totaled RMB147.7 billion yuan, which was 23.5% higher than in the previous year and accounted for 66.4% of the value of total national transactions. Specifically, 76,261 were technological secret contracts worth RMB100.8 billion yuan, respectively accounting for 34.5% and 45.3% of the number and value of total national transactions; 27,617 were computer software copyright contracts worth 25.5 billion yuan, respectively accounting for 12.5% and 11.4% of the number and value of total national transactions; the transactions of technology contracts involving the rights of new bio-pharmaceutical varieties, the rights of new animal and plant varieties and the exclusive rights of integrated circuit layout designs respectively rose 66.6%, 60.7% and 43.9% over the previous year (Based on the article entitled Rapid Development of China's Technology Market in 2007, Patent Statistical Bulletin of the State Intellectual Property Office, Issue 16, 2008).
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