Li Zhanke, a lawyer from Global Law Firm, believes that the "Measures" itself does not constitute a new set of censorship system. It is still a series of measures for China's current adoption of "Regulations on the Administration of Import and Export of Technology of the People's Republic of China" and "Measures for the Administration of Export Prohibition on Export Prohibition". The improvement of the examination system for the transfer of intellectual property rights established by laws and regulations. The "Measures" specifically clarified the review mechanism during the technical export review and the foreign investor's merger and acquisition of domestic enterprises' safety inspections. It also highlighted the functional involvement of the corresponding intellectual property management department.
'Perfect' does not mean 'strictly'
"Articles 1 and 2 of the "Measures" stipulate the scope of the examination and the contents of the examination - that is, the "measures" are aimed at the ability to influence the innovation and development capabilities of China's national security and core key technologies in China's important fields. External intellectual property rights transfer behavior. ' Analysis by Li Zhanke, embodied in the type of intellectual property rights, is the patent right involved in the export of technology, the acquisition of domestic enterprises by foreign investors, the exclusive right of integrated circuit layout and design, the copyright of computer software, the new plant Intellectual property rights such as variety rights, etc.; reflected in the type of behavior, is external transfer behavior, which means that the Chinese entity or individual transfers the intellectual property rights in its territory to foreign companies, individuals or other organizations, including the change of rights holders, and the actual controller of intellectual property rights. Change and exclusive license for intellectual property.
Although the corresponding review materials, review procedures, review timelines and other specific operational matters depend on the relevant departments to formulate more detailed review rules, the “Measures” have already provided regulations for the review functions of the competent departments. Li Zhanke believes that The review mechanism defined in the Measures is a perfection of China’s existing intellectual property rights transfer examination system. The 'improvement' does not mean 'strictly'.
Finding the 'department' is the key
For companies or individuals in the process of transfer, it is even more necessary to focus on how to identify the competent authorities for different types of patents so as to achieve a smooth transfer.
In the four types of patents concerning patent rights, exclusive rights of integrated circuit layout plans, computer software copyrights, and plant new variety rights, the rights of new plant varieties have their own uniqueness. Li Zhanke analyzes that the “approach” has right to new plant varieties. The provisions of the Regulations basically follow the review method approved by the Approval Authority of the People's Republic of China for the Protection of New Plant Varieties (approved by the State Council's agriculture and forestry authorities), but with two additional additions: First, the need for approval is clearly defined. 'Changes in the actual controller' and 'Exclusive licenses'; The second is to clarify the focus of the review, namely 'the impact of the proposed transfer of new plant varieties on China's agricultural security, especially food security and seed industry safety'.
The transfer of the other three types of intellectual property rights is relatively easy. In relation to the transfer of patents and the exclusive right of the layout design of integrated circuits, the local trade authority shall transfer the materials to the local intellectual property management department, which will review and make a The competent authority shall issue written written opinions and report to the competent authority of the State Council for intellectual property rights for the record. When the transfer of the copyright of computer software is involved, the competent department of local trade and the competent science and technology authority shall conduct the review.
Technical national security is more valued
The “Measures” clarifies the principles for reviewing the transfer of intellectual property rights in foreign companies’ mergers and acquisitions of domestic enterprises in the context of their security review: 'according to the type of intellectual property rights to be transferred to relevant departments for comments' and explaining the foreign investment safety review agencies. 2. Reference should be made to the written submissions issued by the relevant authorities and a review decision should be made in accordance with the relevant regulations.
Who is the responsible department? Li Zhanke explained that, in this review mechanism, patent rights and exclusive rights to the layout design of integrated circuits are handled by the competent authority of intellectual property of the State Council; in the case of computer software copyrights, the national copyright authority Responsibilities; Involving the rights to new varieties of plants, the State Council's agriculture department and the competent forestry department shall be responsible for their respective duties.
In addition, the "Measures" also stipulates in particular that if the transfer of intellectual property rights involves the security of national defense, it shall be handled in accordance with the relevant regulations of the State. The present Measures do not apply.
The implementation of the "Measures" signifies China's emphasis on technological national security and national innovation capabilities. It also confers on professional management functions of key intellectual property management departments. 'Li Zhanke said that, of course, key innovations are not related to national security. The technical export review of capabilities is still handled in accordance with the Regulations on the Administration of Import and Export of Technology.