(A) the characteristics and functions of the standard
According to the definition of the International Organization for Standardization (ISO), standards are not only written agreements defined as rules, guidelines or features that can be reused to ensure that materials, products, processes and services meet specific purposes, but also include technical details and other precise specifications. But also a tool for sharing knowledge, technology and experience, and an indispensable element in the infrastructure supporting economic activities, social needs, fairer opportunities and sustainable development in the global industrialization and post-industrialization period.
According to the formation process, standards can usually be divided into government standards and non-government standards. Government standards refer to standards formulated by the government or standardization organizations authorized by the government and promulgated and managed by the government, such as China's national standards, industry standards and local standards. Folk standards are the general name of other standards besides government standards, which are divided into two categories: one is the standards formulated by non-governmental organizations such as industry associations and enterprise alliances, and the other is the factual standards. The fact standard is not formulated by an institution, but is formed by many market factors, including the choice of users. Microsoft operating system standards, which have gained a dominant position through market competition, belong to this kind of standards. Similarly, there are VHS home video recorder of JVC company and Betamax home video recorder standard of Sony company in history.
Government standards have the characteristics of public welfare, maturity, realizability and development. The formulation of standards focuses on ensuring personal and environmental safety, consolidating existing technological achievements, and protecting the interests of products, service providers, consumers and the public, which has obvious public welfare. Maturity means that the technology contained in the standard must be mature, that is, after a certain period of practical use, it can achieve the expected beneficial effects and will not cause serious harm to people's health and natural environment. Of course, this also makes the standard generally unable to represent the highest technical level. Realizability means that the technology contained in the standard can be realized by technicians in their respective fields according to published knowledge and technical information. If a technical requirement cannot be realized according to public information, but must rely on the technical secrets of several enterprises, it cannot become a general standard. Development means that with the progress of science and technology, there will always be new technologies, new standards and old standards that will be eliminated or revised and upgraded.
The main function of the standard is: 1 to ensure the quality and safety of goods in the market. Standards determine whether related products and services can enter the market by requiring them to reach a certain quality or level, be safe and universal. 2. Promote the scale of production and trade activities. Products can meet certain quality standards, which can reduce the time and energy for buyers to evaluate products before buying, and make large-scale production and trade activities possible. 3. Provide a better platform for market competition. Standards make the competition between related products and service providers on the basis of meeting certain market access requirements, which is conducive to the integrated development of the market, makes the competition rules clearer and more open, and provides certain convenience for new subjects to enter the market. 4. Promote the dissemination of innovation achievements, promote innovation and ensure the development direction of R&D activities. Standards can accelerate the dissemination of technical information contained in them and save time and money for the development and implementation of new technologies. At the same time, through market access, it helps human beings to control the possible side effects of scientific and technological development. Therefore, standards can promote consumption reduction and efficiency improvement, increase supply, improve market structure, improve economic operation efficiency, and enable consumers to obtain better and cheaper goods and services.
On the other hand, standards, especially factual standards, can also be used as tools for market pricing, market segmentation and hindering the application of new technologies, and can be used to limit competition.
(2) Features and functions of patents
Patent refers to the legal patent right, an industrial property right among intellectual property rights, and an exclusive right granted by the competent authorities of the state to patent applicants in a certain range according to law. For example, the right scope of product invention patent right includes the right to manufacture, use, promise to sell, sell and import for production and business purposes. At the same time, patent essentially refers to the object of patent protection, that is, patented technology.
In China, patents include inventions, utility models and industrial designs. But internationally, patents are usually synonymous with invention patents. For example, the patents mentioned in the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-related Aspects of Intellectual Property Rights only refer to invention patents.
Patents are characterized by exclusiveness, innovation, openness, regionality and timeliness. Proprietary means that after the state grants a patent right, no one may exploit the patent for the purpose of production and operation without the permission of the patentee. Innovation means that the technical scheme for patent application should be novel and creative, which is superior to the existing scheme. The publicity of patents means that, except for a few cases that need to be kept confidential because of national security or vital interests, relevant technologies must be made public before or at the time of authorization, so that the public can know them. This is the core feature that distinguishes patented technology from technical secrets, and it is the foundation of the whole patent system. Regionality means that the patent right is granted by the competent government department according to the domestic law, and the patent right is generally valid only within the domestic geographical scope, but does not have extraterritorial effect. Timeliness means that the protection of patent rights has a certain period of time. For example, Article 42 of China's Patent Law stipulates that the term of the invention patent right is 20 years from the date of application.
The main function of patent is: 1, to arouse the enthusiasm of innovation activities. By protecting the achievements of technological innovation, people engaged in creation are given economic encouragement, so that they have the opportunity to recover their R&D investment and gain income by transferring patent rights, implementing or licensing others to implement patented technology, and accumulate funds for further scientific research activities. 2. Promote the dissemination of the latest scientific and technological achievements. Published patent specifications and patent application documents contain scientific and technological information, which has become the most comprehensive and timely source of technical information in the world today, and plays an extremely important role in avoiding the waste of resources caused by repeated research and development and accelerating scientific and technological progress. 3. Accelerate the transformation of scientific and technological achievements. Obtaining a patent right requires not only research and development costs, but also the cost of applying for a patent and maintaining its validity to the government, and the economic value of the patent right needs to be realized through implementation or transfer. This makes researchers pay attention to the market prospect of expected results before carrying out innovative activities. Generally speaking, patents can enable consumers to obtain more diversified products and services, make it possible to create new demands, and thus promote industrial and economic development.
On the other hand, the advanced technology protected by patents cannot be used freely in production and business activities, and a large number of inventions with market value were born in the specific application of technology. From this perspective, the patent system can also have a certain negative impact on technological progress.
Interaction between patents and standards
On the surface, the exclusiveness and innovation of patents are completely different from the commonweal and maturity of standards, and even have some contradictions. [8] However, their theme is technology, which is realizable, open and dynamic. At the same time, exclusivity includes public welfare purposes, and new technologies also have opportunities for development and maturity. Therefore, standards and patents are inclusive and more identical, which makes them interact, influence and promote each other.
On the one hand, the standard is a summary and refinement of the existing technology in a certain field, so it can be used as the basic data of R&D activities. For example, for an invention patent that improves the existing technology, the claim must define its innovation points from the existing technology, put the existing technology in the preface and put the innovation points in the characteristic part, so as to clarify the scope of protection. All technologies contained in the standard belong to the existing technology category.
In addition, standards usually guide the direction of R&D activities by guiding the development of the market. Generally speaking, the new technology produced by R&D should meet the existing standards, otherwise, even if the technology can be patented, it may face the problem of market access. In addition, the customer base of each industry is relatively fixed. If a new product in an industrial chain can connect with existing products, users of existing products are more likely to become potential users of this new product, and this new product will be easier to open the market. Therefore, in order to get a better return on R&D investment, we should better understand the existing standard activities of R&D related industries.
On the other hand, patents also promote the development of standards. The continuous emergence and application of new patented technologies is an important embodiment of technological progress. When the new technology is mature and the old standard can no longer meet the actual needs, it is inevitable to improve and update the standard. Even, the original technical fields will be further subdivided because of technological progress, and new technical fields can also appear. From then on, standards will be born in new fields.