What is the scope of intellectual property protection

I. What is the Scope of Intellectual Property Rights Protection

The scope of intellectual property rights protection is as follows: copyright and its related rights, patents, industrial copyrights, trademarks, trade names, origin marking rights, trade secret rights, as well as a variety of rights to oppose and stop unfair competition.

Civil Code

Article 123 Definition of Intellectual Property Rights Civil subjects are entitled to intellectual property rights in accordance with the law.

Intellectual property rights are the exclusive rights enjoyed by the right holders in accordance with the law in respect of the following objects:

(i) works;

(ii) inventions, utility models, designs;

(iii) trademarks;

(iv) geographical indications;

(v) trade secrets;

(vi) layout designs of integrated circuits;

(vii) intellectual property rights; and

(viii) intellectual property rights in accordance with the law. /p>

(vii) new varieties of plants;

(viii) other objects prescribed by law.

Article 444 The Establishment of Pledge Right and Transfer Restrictions on the Establishment of Pledge Right on Property Rights in Intellectual Property Rights If the pledge is made on property rights in intellectual property rights such as exclusive right to registered trademarks, patents, copyrights, etc., the pledge right shall be established from the time of registration of the pledge.

After the pledge of property rights in intellectual property, the pledgor shall not transfer or license others to use, but the pledgor and the pledgee shall agree. The price derived from the transfer or licensing of the property rights in intellectual property rights shall be paid to the pledgee in advance or deposited by the pledgee.

Article 844 Purpose of Conclusion of Technology Contracts The conclusion of a technology contract shall be conducive to the protection of intellectual property rights and the progress of science and technology, and shall promote the research and development, transformation, application and popularization of scientific and technological achievements.

Second, what is the object of protection of intellectual property rights

The object of patent protection refers to the object of patent protection, i.e., the inventions and creations that can obtain patent protection. According to the provisions of article 1 of the Paris convention, the object of patent protection only refers to the invention, and utility models and designs are parallel with the invention of the object of industrial property protection. Therefore, most countries only take the invention as the object of patent protection, and utility models and designs are separately formulated to be protected by laws parallel to the patent law. China's patent law protects the object of invention, utility model and design of the three kinds of industrial property object, these three in China's patent law, collectively referred to as invention and creation. It should be noted that, in China's patent law, utility models and designs can be protected, and in the back of these two also add the word "patent", but can not be considered to be the Paris Convention patent.

(I) invention

On the concept of invention, that is, what is an invention, the relevant international conventions on intellectual property rights has not been defined, only a few countries on the invention of the patent law directly under the definition of the invention, but the expression of the different, in order to comprehensively understand the essence of the invention, the following examples:

China's Patent Law Implementing Rules Article 2 provides that: "invention" as referred to in the Patent Law, means an invention of a product, a method or a design of the same kind as a product, a method or a design of the same kind. refers to the product, method or its improvement of the proposed new technical program.

Section 101 of the U.S. Patent Law provides that a patentable invention is a novel and useful method of manufacture, machine, article of manufacture, combination of substances, or a novel and useful improvement thereof.

Section 2 of the Japanese Patent Law provides that an invention is a high-level technical creation made by utilizing the laws of nature.

Article 112 of the Model Law on Inventions in Developing Countries, developed under the auspices of the United Nations World Intellectual Property Organization (WIPO), states that an invention is an idea of the inventor that solves in practice a particular problem in the field of technology.

From the above definition, it can be seen that an invention is a kind of technical idea of the inventor, which is a new technical program, or technical conception, made by utilizing the laws of nature that can solve a particular problem in the technical field. Inventions can be further divided into product inventions and method inventions, and their corresponding patents are usually called product invention patents and method invention patents, respectively.

(2) utility model

Utility model is also a technical idea or technical program, commonly known as "small invention". It is not essentially different from the invention. But it also has the following differences with the invention:

One is the utility model is limited to the shape of the product, the structure or the combination of the invention, that is to say, it can only be on the machinery, equipment, devices, appliances, daily necessities, and other products of the new design, therefore, the invention of the process can not be protected by utility model patents; two is the utility model than the invention of inventions are generally lower than the inventiveness of the patent law of our country. The provisions of the patent law, for example, the invention should have outstanding substantive features and significant progress, utility model should have substantive features and progress; Third, in the way of protection of utility models, some countries are protected by registration or registration; China's patent protection of utility models, in essence, is also a form of registration, because China's patent law, although the patent law of the patentability of utility models should be equipped with the conditions, but At the same time and the provisions of the utility model patent application only for preliminary examination (formal examination) without patentability examination, as long as the form of examination can be granted by the utility model patent, as to whether it is in line with the conditions of patentability, generally in the patent infringement disputes; Fourth, the law of utility model protection period than the invention is much shorter.

(C) design

China's patent law to design also as the object of patent protection. On what is a design, the implementation rules of China's patent law, article 2 provides that: the patent law refers to the design, refers to the shape of the product, pattern, color or a combination of new design of the aesthetic sense and suitable for industrial application, and the WIPO under the auspices of the "course of intellectual property law," pointed out that: "industrial design belongs to the field of aesthetics, but at the same time as the style of industrial or handicraft manufactures. Industrial designs belong to the field of aesthetics, but at the same time they are used as models for industrial or handicraft manufactures. Generally speaking, an industrial design is the decorative or aesthetic appearance of a useful article. The decorative appearance may consist of the shape and, or pattern and, or color of the article. The decorative or aesthetic appearance must be visually appealing." Designs are protected in order to prevent others from copying the same or similar articles. In the way of protection, most countries are using the registration system or registration system, China's patent law provides for the way in fact also implement the registration system, requiring the applicant to submit pictures or photographs of the articles that represent the design, write the design used in the product.

There are many different forms of patents, but no matter which one, as long as they are applied for through the State Patent Office are legally valid. Patent application, every year is to pay the management fee, management fee is charged in accordance with the piece, small micro-profit enterprises, generally will reduce a lot of tax, management fee is a year to pay once, the patent office does not invoice open receipts.

Three, the criminal law protection of intellectual property must strictly follow the general principles of criminal law

Criminal justice principles refers to the process of criminal justice should be generally observed and applied to the general rules, including the law of the land, the crime and the punishment should be compatible with the crime and the crime of suspicion, etc., these principles are throughout the criminal justice, reflecting the rule of law of the criminal law of the country's basic spirit and soul. Intellectual property is an intangible property right. Unlike tangible property rights, the boundaries of the rights of patents, trademarks, copyrights and trade secrets are often not clear enough and relatively unstable, so compared with general criminal cases, intellectual property rights criminal cases in the judgment of crime and misdemeanor standards have particularity and relative complexity. Nevertheless, intellectual property criminal cases still belong to the scope of criminal justice, must strictly abide by the general principles of criminal justice. China's implementation of intellectual property rights judicial protection and administrative protection coexist "dual-track" law enforcement model, judicial protection itself has three ways of civil, administrative and criminal protection, and deprivation of liberty and property as a means of criminal justice, is the most severe and the most expensive way of protection. Therefore, when the protection of intellectual property rights need to use criminal means, must adopt more stringent judicial standards, accurately grasp the boundaries of criminal protection.

Criminal protection of intellectual property rights is currently the most controversial area of criminal protection of copyright. Article 217 of the Criminal Law of China provides that, for the purpose of profit, without the permission of the copyright holder, copying and distribution of his written works, music, movies, television, video works, computer software and other works, the amount of illegal income or other serious circumstances, constitutes a crime of copyright infringement. The understanding of the scope of "other works" is directly related to the scope of criminal law protection of copyright, and is highly controversial in both theoretical and practical circles. One viewpoint is that the types of works protected by criminal law explicitly listed in Article 217 of the Criminal Law of China are too narrow, while the infringement of copyright continues to be new, and can no longer satisfy the judicial demand for the protection of the content of copyright rights that are constantly developing, and thus all the types of works protected by China's copyright law and laws and administrative regulations should be included in the scope of protection of the criminal law " other works". The scope of protection of "other works", specifically, in addition to written works, music, movies, television, video works, computer software works explicitly enumerated in Article 217 of the Criminal Law, it should also include the oral works stipulated in Article 3 of China's Copyright Law, works of drama, opera, dance, acrobatic art, art, architectural works, engineering design drawings, product design drawings, maps, schematics and other graphic works and model works. On the other hand, another viewpoint holds that only those works which are roughly equivalent in nature and harmful consequences to the works explicitly listed in the criminal law can be included in the scope of protection of the criminal law. In this regard, the author is of the opinion that the understanding of "other works" should be interpreted in a more restrictive manner. On this issue first of all to solve the problem of judicial competence, that is, to clarify the judicial decision for the application of this kind of criminal law of the interpretation of the provisions of the pocket.

The bottom clause is a common legal expression in the legal text, mainly to prevent the law may not be strict, as well as the enactment of the law after the social situation of the continuous change, with the role of maintaining the relative stability of the law. The "underlining clause" is purely a matter of legislative technique, leaving room for the interpretation of the law by the organs of legal interpretation. The law-interpreting organs include only the national legislature and the highest judicial organ, excluding the trial organizations that handle specific cases. The highest judicial organ may make judicial interpretations of the application of legal provisions within the scope of legal authorization, and report them to the National People's Congress for record and review. Whether the scope of criminal law protection of copyright needs to be revised or expanded in line with economic and social development should be resolved by legislative interpretation or judicial interpretation, whereas before that, the adjudicator in a case trial arbitrarily includes works other than those explicitly enumerated in the provisions of the criminal law into the scope of protection of the criminal law and convicts them, which is contrary to the principle of the law of criminal law and penalty, and at the same time exceeds the competence of the criminal justice. Therefore, it is one of the boundaries of criminal protection to strictly follow the principle of the law of crime and punishment, and not to arbitrarily expand the application of the provisions of the criminal law.

The Chinese people's **** and National Code

Article 123

Civil subjects enjoy intellectual property rights in accordance with law.

Intellectual property rights are the exclusive rights enjoyed by right holders in accordance with law in respect of the following objects:

(1) works;

(2) inventions, utility models and designs;

(3) trademarks;

(4) geographical indications;

(5) trade secrets;

(6) integrated circuit layout designs;< /p>

(vii) new varieties of plants;

(viii) other objects prescribed by law.

Article 127 of the Chinese People's **** and National Code

Where the law provides for the protection of data and network virtual property, it shall do so in accordance with its provisions.

Article 130 of the Chinese People's **** and National Codes

Civil subjects exercise their civil rights in accordance with their own will in accordance with the law without interference.

Chinese People's*** and National Code

Article 132

Civil subjects may not abuse their civil rights to the detriment of the interests of the State, the interests of the public*** or the lawful rights and interests of others.