Zhao Xu. Pacific Research And Education Institute Inc (USA)
IP Researcher E-mail:xuzhao088@sina.com
[Abstract] Standards and intellectual property rights are compatible with each other, and the disclosure of standards inevitably involves the disclosure of intellectual property rights. Many patents or technical secrets hidden in the standards, through the publicity means and Strategies of standards, will get the first chance in the market competition. To integrate into the market, we must enter into its standard system and conduct production, management and operation in accordance with its standards.
[Key words] Technical Standards Market Competition Standardization IP
1.1 DIFFERENTBETWEENTECHNICALSTANDARDSANDIPRIGHTS
The standard is open, it is a kind of public product, which has the characteristics of non consumption and non competition. It is the result of the general acceptance and selection of the public. The purpose of formulating and implementing the standard is to widely promote the standard in a certain industry or a certain product or a certain service. Therefore, the standard itself is not a private right or any administrative privilege. Different from the essential attribute of standard, intellectual property is private right, which originated in the embryonic period of Roman commodity economy. At that time, people began to realize that mastering a certain skill can also bring wealth. As Adam Smith said, "thinking is productive, because it saves labor", and labor is creating value, that is, thinking has value[5].
This may be an early evaluation of knowledge and an early understanding that knowledge has value. It was not until the promulgation of Venice patent law in 1474 that the inventor had the right of "monopoly" on the technology he owned, that the system began to protect the inventor's private rights.
After the formation of the intellectual property system, with the continuous development of science and technology, its fields and scope are also expanding. Although people have different opinions on the nature of intellectual property, it seems that people have basically recognized that intellectual property is private right. In this regard, Mr. Zheng Chengsi once pointed out that [6].The private right of intellectual property rights is the right that people realize that it is the right of individual human beings or their combination to the results of individual mental workers' individual or cooperative creation, or the exclusive right that people legally enjoy on the results of their intellectual creation (with technology as the core).
Even though the meaning of intellectual property is embodied by the way of defining copyright, patent right, trademark right and so on, it also reflects the nature of its private right; for example, copyright is defined as the exclusive right given to the author, art staff and publishers for their original work[7]
The patent right is defined as the exclusive right to the inventor to produce, use and sell his invention[8]
Regard trademark right as the right that trademark law gives trademark owners to prevent others from applying their trademark to their goods or services. From these individual definitions, their commonness is "exclusiveness and absoluteness".
That is, without permission, no other person may engage in business or any other business activities with the above-mentioned intellectual property rights.
It can be seen that the essence of intellectual property is private right, which is different from the standard public right attribute.
Specifically, there are the following differences:
First, different purposes. The purpose of promoting the use of standard technology is more focused on promoting the development of industry, while the granting of patent technology focuses on encouraging scientific and technological innovation and protecting the interests of patentee. Sometimes, the promotion of standards will inhibit the innovation activities of science and technology.
Second, the application conditions are different. Standard technology is a public technology, which has universality, no conditions for use, and can be used free of charge; while patent technology is a proprietary technology, patent right is an intellectual property right, and a monopoly If the non patentee wants to use a patented technology, he must obtain the license of the patentee and pay a certain royalty as agreed.
Third, different stages of technological development. Standard technology is mostly mature technology, and patent technology is innovative technology. Although there are many differences and conflicts between standards and patent technology in traditional concepts, although with the development of economy and technology, they have begun to combine, but the gap and formation stage between them are different.
1.2CONNECTIONBETWEENTECHICALSTANDARDSANDIPRIGHTS
First, standards and intellectual property rights are open.
The basic purpose of standard formulation is to promote and apply, make the corresponding departments and fields acceptable, and make the majority of consumers know. Therefore, the basic system and content of the standard must be open. Similarly, the real value of intellectual property lies in the promotion and application. The knowledge that cannot be disseminated or the knowledge that cannot be transmitted is not entitled to property rights. In fact, standards and intellectual property rights are compatible with each other. The disclosure of standards inevitably involves the disclosure of intellectual property rights. Moreover, the possibility of technology transfer or technology license is often hidden behind standards. For example, multinational companies are interested in the standard not because of the knowledge content of the standard itself, but because of many patents or technical secrets hidden in the standard. If other enterprises do not use their technology, they cannot produce or provide products that meet the standard. They use standards to control their competitors. Through the publicity means and Strategies of "standards", once consumers agree with their standards in the market competition, they will seize the opportunity. Anyone who wants to share a market must enter their standard system and produce according to their standards. At this time, the latter has to obtain corresponding technology and other intellectual property rights through commercial channels from the standard makers or participants[9]
It can be seen that the use of standards is bound to involve the use of intellectual property rights. The disclosure of standards is the disclosure of intellectual property rights. It can even be said that the establishment of standards serves to promote the intellectual property rights of its makers or participants.
Generally speaking, the combination of standards and intellectual property mainly includes the following situations[10]:
1.1.1 the technical elements in the standard include the description of a product's performance, shape, quality regulations or other technical indicators, or the attitude, mode and quantity of a service, rather than the patent or proprietary technology itself, because the latter is a specific scheme or implementation step or measure meeting the above requirements or corresponding indicators, which is the essence of the technology.
1.1.2the technical elements in the standard describe some features of products or services, and patents and know-how are effective means to realize the above features. For new technologies, in order to maintain their competitive advantage, technology owners usually do not turn their solutions into standards. They mostly extract some key indicators or parameters and turn them into the basic contents of standards. Therefore, the first two methods are commonly used for new technologies.
1.1.3 if the technical elements of the standard not only include the performance, shape, quality, specification, etc. of the product, but also include all the features of the technology and its implementation scheme, steps, means, etc., the technical elements of the standard constitute a complete technical scheme. At this time, the standard has been integrated with technology, and it is more accurate to call it standard technology than technical standard. However, such standards generally do not have too much high-tech content, or are already public technology, which can be used by anyone free of charge. In reality, there are almost no such standards with high technology content. Even if there are, they are also integrated with related objects of intellectual property system protection, such as DOS system, windows system, CPU technology, etc.
Second, improving the intellectual property system is the basic guarantee for the formulation and implementation of standards.
The standards established on the basis of intellectual property rights can only be legally, reasonably and effectively promoted and applied through the intellectual property rights system. That is to say, only the intellectual property rights and technologies that can be fully protected can enable the standard makers or leaders to actively formulate and implement new standards under the standards. It is impossible to imagine how standards based on unprotected intellectual property rights can be established and implemented. From the perspective of the history of standardization, its vigorous development comes from the rise and improvement of the intellectual property system. Intellectual property protection is the premise and guarantee of standard formulation and implementation, technology transfer is the internal interest driving force of standard makers, while protection is the core content of intellectual property system, and technology transfer is one of the main objectives of intellectual property system[11]
This relationship makes standards inseparable from the intellectual property system. As Mr. Sanders said: the effect of standardization can only be shown when the standard is implemented, otherwise even if it is published forcibly, if it is not implemented, it will be worthless[12] its implementation depends on whether the intellectual property owner, as a standard participant, supports and actively promotes it, which largely depends on whether its legitimate interests can be fully and effectively protected and the reality.
It can be seen that whether the intellectual property system is sound or not is the core of formulating and implementing standards.
Third, the standard is the key for enterprises to obtain market competitive advantage by using intellectual property system.
Generally speaking, the enterprises that make or have standards can't obtain monopoly market position or competitive advantage by themselves, because standards, like scales, are used to measure whether a product has met certain technical requirements or specifications, and whether it has been accepted by the market. They are generally known by many consumers, producers or providers of similar products (service products). Enterprises with new technology standards must force competitors to use their own protected intellectual property rights if they want to establish a monopoly position or market competitive advantage, that is, if the latecomers want to produce or provide products that meet the technical specifications or requirements and can be accepted by consumers, they cannot do without their intellectual property rights.
It can be said that the standard is external, but the hidden intellectual property is internal. It is the internal cause of the power of the standard. That is to say, only through the intellectual property system can the standard become a competitive weapon. Of course, only through the external rigid form of standards can the intellectual property rights of the oblige give full play to the greatest potential of creating wealth and gaining competitive advantage, especially the "chemical reaction" that occurs when different intellectual achievements are synthesized by standards (such as patent pool, patent and know-how, and joint package or package deal between the former and copyright or trademark). Its benefits are much higher than the benefits that a single intellectual property transaction creates for standard holders. From a certain point of view, the relationship between standards and intellectual property rights is just like that between lips and teeth, and that between lips and teeth is "teeth cold". Although "teeth" still exist, their degree of profit is far less than that under the protection of "lips". In fact, transnational corporations have made good use of the close relationship between them to realize their private rights under "intellectual property" through specific public products -- standards; standards have become a powerful tool for them to realize their strategic intention of global distribution and ultra-high profits through intellectual property system, or to gain competitive advantage in the intellectual economy. New weapons[13].
Fourth, standards are a powerful driving force for the promotion of intellectual property trade and cooperation[14].
In the market, if a certain standard is widely accepted, the products of the same kind of production enterprises must meet certain technical indicators to be regarded as conforming products. If services or technology are provided, they must also
Only when certain technical indicators are met can they be regarded as meeting the standards, so that they can be accepted by consumers; and the realization of technical indicators
None of them relies on specific technologies, i.e. the technologies involved in the standard formulation scheme. Once the standard is established
After that, the intellectual property rights under the standard will go to the market with the promotion of the standard, which forces the competitors in the same industry who fail to establish the standard to follow the standard. Otherwise, they can't make another set of things compatible with the system equipment under the standard, or they can't be accepted by the market, which is the fundamental reason that many enterprises try to launch their own standards or participate in the standard formulation. As mentioned before, if we want to meet the requirements of bench marking, we must use the technology-based intellectual property under the standard, so that intellectual property transfer, licensing, etc. will appear on a large scale. When an intellectual property owner wants to obtain benefits through licensing, he must hope to have more licensees.[15]
And standards offer them that opportunity. When a standard consists of intellectual property rights of many intellectual property owners, all members participating in the standard formulation must obtain the license authorization of one of the technical rights holders, so that the transactions between them also occur, and the interrelationship between technologies will certainly expand the scope of the license. In reality, franchising and licensing processing are distributed around the world.
Fifth, standardization is conducive to the improvement and development of intellectual property system[16]
As the impact of standards is closely related to the intellectual property system, and standards are based on intellectual property, and intellectual property system is the premise of the establishment and implementation of standards, therefore, the improvement or perfection of intellectual property system is directly related to the interests of standard holders.
Technical standards are supported by a technical system, in which the core technologies are mostly technologies that are protected by law in the form of patents; technology monopoly is mainly realized through patent protection, and standards organizations include patented technologies into the standard system through the establishment of technical standards; the adoption of a technical standard requires the adoption of the patents involved in the standard, so the implementation standard is actually to Use the relevant technology involved in the standard. This is the binding effect of standards and patents. Technology owners successfully package their own "private rights" into "public rights" by hitchhiking their own patented technologies to maximize their economic benefits. For this reason, the technical right holders in the standard will pay high attention to any deficiency or defect of the relevant intellectual property system for the consideration of interests.
Once there is a dispute or problem caused by inadequate protection, they will urge and require the relevant institutions to plug the legal loopholes in time and complete the relevant systems to protect their own rights and interests. The relationship between standards and intellectual property rights is a complementary exterior interior relationship. The perfect combination of the two will have a positive impact. Standards can guide, encourage or regulate the behavior of intellectual property owners to maximize their interests, promote the circulation and diffusion of intellectual property rights, promote cooperation between intellectual property owners, promote the improvement of intellectual property systems, and promote technological progress. Step, improve the quality of human life. At the same time, intellectual property is the basis of the formation of standards, and its system is the premise of the establishment and implementation of standards; the rapid development of intellectual property with technology as the core will promote the development of standards, and the improvement of its system will make standards further play a role. But at present, both standards and intellectual property system are more conducive to the advantages and interests of all people. How to balance the interests between standards and the owners and users of intellectual property is a problem that human beings need to solve.