Study on Reasonable Government Intervention Mechanism of Green Patent
https://doi.org/10.17803/2587-9723.2020.3.066-071
Abstract
Double pressure from global warming and development of low carbon economy makes research and development of green technology to be global attention. We hope to solve environmental problems and promote low-carbon economic development by green technology accelerating research and diffusion. Patent system is necessary to make a response to it. Innovative examination and enforcement system of green patent is important way to solve environmental problems and promote green development. Although patent system mainly embodies the will of private rights subject, moderate and reasonable government intervention is necessary. Among it, playing a positive role of government intervention is the key point of ensuring green patent establishment and enforcement.
Government reasonable intervention of green patent has its legitimacy, mainly basing three needs: public goods property of addressing climatic issues; green technology innovating and diffusion; coordination of reasonable public power intervention and patent system. Solving climatic issues belongs to typical public goods. That needs governments undertaking obligations of green patent intervention. Through government reasonable intervention of green patent system, green patent examination system can promote green technology innovation and green patent enforcement system can promote green technology diffusion. Handing well relationship between government public power intervention and private rights property, and maintaining a healthy balance, will promote green patent system healthy development.
Government intervention of green patent system, is mainly embodied in two sides: one is environment department participation in standard definition, the other is green patent accelerating examination system. Green patent definitions are different in various countries patent system. Learning from other country experience and basing our country actual condition, we can grasp the green standard: the law specifies the definition of green invention; environmental protection administration introduce specialized green technology classification table; environmental protection administration and patent administration establish a joint working mechanism to examine patent. Green patent accelerating
examination system has been patent system innovation in many countries. Government intervention in green patent accelerating examination system should consider three factors: green patent examination quality should not be reduced; general patent examination quality should not be affected; overall patent review capacity should be improved.
Government reasonable intervention of green patent includes two sides: government guidance in green patent pool and realization of public interest in compulsory licensing of green patent. Because green patent pool loads environmental rights and interests target, government intervention and moderate guidance is necessary to build green patent pool. Government guidance starts from three aspects: preferential government measure will be incorporated into the local economic and social development plan; preferential government measure will be determined by the value of green patent from the pool member; direct administrative intervention should be avoided. In patent law, weakness and deficiencies of compulsory patent licensing system should be remedied. On this basis, two sides work should be done well in compulsory green patent licensing system. One is the definition of public interests should be stipulated in patent law. Then compulsory green patent licensing of environmental protection purpose can be incorporated into compulsory patent licensing of public interest purpose. The other is environmental legislation should be docked with compulsory licensing system of green patent. We suggest the definition of public interest added in patent law: public interest includes national defense
needs, environmental protection, the public interest purpose and so on, determined by the patent administrative department under the state council. The provisions should be added in detailed rules for the implementation of the patent law: For environmental protection of public purpose, environmental friendly technology can be compulsory licensed. Environmental friendly technology is made up of those can save energy and resources, reduce and avoid environmental pollution.
Government reasonable intervention of green patent has its legitimacy, mainly basing three needs: public goods property of addressing climatic issues; green technology innovating and diffusion; coordination of reasonable public power intervention and patent system. Solving climatic issues belongs to typical public goods. That needs governments undertaking obligations of green patent intervention. Through government reasonable intervention of green patent system, green patent examination system can promote green technology innovation and green patent enforcement system can promote green technology diffusion. Handing well relationship between government public power intervention and private rights property, and maintaining a healthy balance, will promote green patent system healthy development.
Government intervention of green patent system, is mainly embodied in two sides: one is environment department participation in standard definition, the other is green patent accelerating examination system. Green patent definitions are different in various countries patent system. Learning from other country experience and basing our country actual condition, we can grasp the green standard: the law specifies the definition of green invention; environmental protection administration introduce specialized green technology classification table; environmental protection administration and patent administration establish a joint working mechanism to examine patent. Green patent accelerating
examination system has been patent system innovation in many countries. Government intervention in green patent accelerating examination system should consider three factors: green patent examination quality should not be reduced; general patent examination quality should not be affected; overall patent review capacity should be improved.
Government reasonable intervention of green patent includes two sides: government guidance in green patent pool and realization of public interest in compulsory licensing of green patent. Because green patent pool loads environmental rights and interests target, government intervention and moderate guidance is necessary to build green patent pool. Government guidance starts from three aspects: preferential government measure will be incorporated into the local economic and social development plan; preferential government measure will be determined by the value of green patent from the pool member; direct administrative intervention should be avoided. In patent law, weakness and deficiencies of compulsory patent licensing system should be remedied. On this basis, two sides work should be done well in compulsory green patent licensing system. One is the definition of public interests should be stipulated in patent law. Then compulsory green patent licensing of environmental protection purpose can be incorporated into compulsory patent licensing of public interest purpose. The other is environmental legislation should be docked with compulsory licensing system of green patent. We suggest the definition of public interest added in patent law: public interest includes national defense
needs, environmental protection, the public interest purpose and so on, determined by the patent administrative department under the state council. The provisions should be added in detailed rules for the implementation of the patent law: For environmental protection of public purpose, environmental friendly technology can be compulsory licensed. Environmental friendly technology is made up of those can save energy and resources, reduce and avoid environmental pollution.
About the Author
Zheng Shuqian
Law/Intellectual Property School of Henan University
Russian Federation
Kaifeng
Russian Federation
Kaifeng
Review
For citations:
Shuqian Zh. Study on Reasonable Government Intervention Mechanism of Green Patent. Legal Science in China and Russia. 2020;(3):66-71. (In Chin.) https://doi.org/10.17803/2587-9723.2020.3.066-071
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