The hottest view of patents from a new perspective

2022-09-22
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Looking at patents from a new perspective

-- Thoughts on the report of the Federal Trade Commission of the United States

since the establishment of the patent system, its role in encouraging innovation and promoting technological progress has been obvious to all. On the other hand, the great contribution of competition to innovation and economic development can not be ignored. Because the patent system itself has certain monopoly characteristics through the introduction degree, there are certain contradictions and conflicts between competition and the patent system. Moreover, with the development of the patent system itself and technology and society, this contradiction and Conflict presents a more complex state. Therefore, how to understand and deal with the relationship between the two has attracted more and more attention

"competition and patent must work together in a proper balance" - this is the core idea of the Federal Trade Commission (FTC) competition and patent policy report. The report puts forward 10 suggestions on how to maintain this balance. The main idea of these suggestions has two aspects: on the one hand, it is to improve the patent examination and approval procedures, improve the quality of patents, reduce the obstruction of the patent system (especially "problem patents") to competition and the proliferation of innovation in plastic bags in the agricultural trade market, and prevent the patent system from becoming a means to restrict competition; On the other hand, it is to prevent the abuse of the patent system, limit the application of the patent system to a reasonable range, and avoid the unlimited expansion of patent protection and damage to competition (see Recommendation 6: consider the damage to competition before expanding patentable topics)

obviously, the subtext of the latter is that patents and innovation are not simply a straight-line increase. It does not mean that the wider and stronger the application of the patent system, the more conducive it is to innovation. Only by limiting the patent system to a reasonable range can we really promote innovation. It should be said that this understanding has existed since the establishment of the patent system. Therefore, the patent laws of various countries basically have provisions on the limitation of rights and exemption clauses, and there are also certain restrictions on the object of patent protection. However, with the continuous emergence and development of new technologies, the patent system is also expanding and developing, and the boundary of the patent system begins to blur. So, what factors need to be considered before the patent system is extended to new fields? Recommendation 6 in the FTC report answers this question, that is, we should consider the damage to competition. In particular, the third chapter of the report also specifically analyzes and discusses the innovation status in some technical fields, such as pharmaceuticals, biotechnology, computer hardware, software, networks, semiconductors, etc. The following part V of this chapter is taken as an example to introduce the discussion on Relevant Issues in the report, which involves the patent protection of computer software and networks

although the United States has a positive attitude towards the patent protection of computer software and business methods in practice, after a period of practice, it is also carrying out reflection at all levels and angles, which is reflected in the report. The report shows that the role of competition in promoting the development of computer software and network technology has been unanimously agreed by the hearing members, but the hearing members have different views on the role of patent protection in promoting innovation in this field. The report first summarizes several characteristics of the field of computer software and networks:

1. It belongs to cumulative innovation: new products are usually produced on the basis of absorbing other product elements

2. The capital needed for innovation is much lower than that in other high-tech fields

3. The frequency of technological innovation is very fast

4. There are other mechanisms to promote innovation, such as copyright protection or open-source software development

5. Its patent protection has had an impact on the existing patent system. For example, after its patent protection was recognized, it triggered an increasing number of applications, and posed a challenge to the concept of "existing technology"

later, the report quoted the views of the hearing members and raised some objections to the patent protection of computer software and business methods: the patent protection of software and business methods will affect competition and hinder innovation, which is not conducive to subsequent technological progress, adding barriers to the entry of some research fields, adding some uncertain factors and affecting the investment introduction of innovation, At the same time, it forms a "patent Bush" that hinders the innovation of displacement accuracy. Other hearing members pointed out that the excessive burden of patent defense has increased the cost of products, which will eventually be passed on to consumers. At the same time, some hearing members also questioned the value of patent disclosure in this field, because the disclosure of software patent applications does not require the disclosure of source code

the above view is a review and summary of the actual effect and impact made by the United States from a perspective after actively applying patent protection to the field of computer software and business methods. The discussion is based on the advanced technological development level and a large number of patent applications and patents in the United States. It not only recognizes and emphasizes the importance of the patent system, but also fully recognizes the importance of competition, aiming to maintain a balance between the two, so that both can play a role in promoting innovation

in connection with this, the report of the British intellectual property Commission on the integration of intellectual property and development policy puts forward the following suggestions to developing countries: in the process of formulating the patent system, we should adopt strategies conducive to competition; This competitive strategy is best achieved by trying to limit the scope of patent protection. The above suggestions are based on the relatively backward technological level of developing countries, and the starting point is to protect the interests of developing countries, because the patent system of developing countries is mostly established from the external needs of attracting investment, and most of the patents that need to be protected are owned by foreigners, while the number of patents owned by individuals and enterprises in their own countries is limited, so the ability to benefit from the patent system itself is weak. Based on this understanding, the recommendations of the report of the British intellectual property Commission for developing countries are more inclined to protect competition in order to help them support domestic innovation and avoid developed countries using the patent system to suppress the innovation capacity of developing countries

although the basis and starting point of the above two reports are different, the same conclusion is reached: the scope of patent protection should be limited to a reasonable range. Of course, the so-called "reasonable scope" itself is also different due to the different technical levels and national conditions of various countries. But at the same time, it can be seen that both developed and developing countries need to take a cautious attitude towards patent protection in some fields (such as computer software and business methods)

on the other hand, although the FTC report did not make authoritative and final conclusions on relevant issues, it provided an important information that the negative effect of patent protection in the field of new technology has attracted people's attention. At the same time, it also provides an important idea for us to study the patent protection of new technologies (such as computer software and business methods), that is, to examine its role and significance from the perspective of whether it can maintain a balance with competition. Specifically, we can draw the following enlightenment: first, we should avoid adopting the thinking mode of patent protection = promoting innovation. While affirming the positive significance of the patent system, we should pay full attention to its negative role, and pay special attention to preventing the patent system from being abused and distorted as a means of restricting competition, thus departing from the original intention of the establishment of the patent system. Secondly, the patent system should be examined and examined in the context of encouraging innovation. We should not only pay attention to its own development, but also pay attention to its interaction and influence with other social systems and mechanisms, especially the coordination and balance with competition

of course, special attention should be paid to the fact that the FTC report of the United States is based on the technological level and economic development needs of the United States. As mentioned above, due to the different technical and economic conditions between developing countries and developed countries, the actual needs of some issues are different. We cannot simply apply the conclusions and practices of the United States, but we should master its method of analyzing problems and apply it to the reality of China's technological and social development. Specifically, we need to fully understand and grasp the actual situation of China's specific technical fields, clarify which areas of our country have strong R & D capabilities and which areas are relatively backward, so as to focus on the application and expansion of patent protection, and formulate and implement appropriate policies and protection mechanisms

Article 1 of China's patent law has clearly stipulated that the purpose of the patent law is "to protect the patent right of invention and creation, encourage invention and creation, facilitate the popularization and application of invention and creation, promote scientific and technological progress and innovation, and meet the needs of socialist modernization". It should be considered that the formulation and implementation of the patent law is to protect patent rights, and the protection of patent rights serves the goal of promoting scientific and technological progress and innovation and meeting the needs of socialist modernization. The patent law has pointed out the starting point and direction of the development of the patent system, which should be reflected and applied in all levels and links of legislation, law enforcement, justice and so on. This requires us to clarify: under the influence of other mechanisms, the relationship between patents and innovation (especially in the field of new technology), analyze the comprehensive effect of the patent system, so that the patent system can better serve China's socialist Anxin Securities Research Report shows the modernization drive

for this reason, I would like to thank the comrades of the Patent Documentation Department for providing and sorting out this report and related materials, which provide a good reference for our research and Discussion on related issues

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