Has China Established a Green Patent System? Implementation of Green Principles in Patent Law
Abstract
:1. Introduction
- To examine the tendency to protect green technology from the aspect of patent application;
- To examine the impact on the promotion of green technology from the perspective of patent licensing;
- To examine the implementation of the green principle in the patent infringement liability.
2. Literature Review and Hypothesis Development
2.1. Imagination of the Green Patent System
2.2. Research on Accelerated Examination of Green Patents
2.3. Promotion of Green Patent Technology
3. Method Used and Materials
3.1. Research Methodology
3.2. Materials
4. Analysis and Discussion
4.1. Necessary to Establish a Green Patent System
4.2. Green Principles in Patent Rights Acquisition
4.2.1. Theoretically Object Exception System Can Restrict Non-Green Technologies
4.2.2. Accelerated Examination Has Little Effect on Promoting Green Patent Applications
4.3. Theoretically Special Licensing Can Promote the Use of Green Patents
4.3.1. Theoretically Compulsory Patent Licensing Can Promote Green Patent Licensing
4.3.2. Patent Open Licensing
- Patent Open License Incorporated into the Patent System
- Promoting Ecological Patent Sharing through Private Initiatives
4.4. The Green Principle in Patent Right Remedies
4.4.1. Restriction on the Right to Stop Infringement Claims
4.4.2. Punitive Damages for Violation of Green Principles
5. Conclusions
Funding
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Conflicts of Interest
References and Notes
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Materials Type | Documents | Source |
---|---|---|
Policy documents | 2021 Statistical Bulletin of National Economic and Social Development; National Economic and Technological Development Zone Green Development Report 2021; | China Government Network |
Legal norms | Civil law Patent law Judicial interpretation Departmental rules | China Government Network |
Judicial case | Cases of searching with “green principles” as a keyword | China Judgment Document Network |
Documents | Contents | Issued | Time |
---|---|---|---|
Opinions on Accelerating the Establishment of a Green Production and Consumption Regulation and Policy System | Requiring the establishment of regulation and policy system on a green production and consumption, | National Development and Reform Commission and the Ministry of Justice. | March 2020 |
Notice on Organizing the Recommendation of Green Technology | Requiring accelerated promotion and application of advanced green technology, and requiring all units to recommend green technology. | National Development and Reform Commission and other three departments. | June 2020 |
Article 9 | Civil subjects engaged in civil activities shall be conducive to saving resources and protecting the ecological environment. |
Article 286 (1) | The owner shall abide by the laws, regulations and management regulations, and the relevant behavior shall meet the requirements of saving resources and protecting the ecological environment. |
Article 326 | Usufruct holders, exercising their rights, shall abide by the provisions of the law on the protection and rational development and utilization of resources and the protection of the ecological environment. |
Article 346 | The establishment of construction land use rights shall meet the requirements of saving resources and protecting the ecological environment, abide by the provisions of laws and administrative regulations on land use, and shall not damage the usufruct rights that have been established. |
Article 509 (3) | In the process of performing the contract, the parties shall avoid wasting resources, polluting the environment and destroying the ecology. |
Article 558 | After the creditor’s rights and debts are terminated, the parties shall follow the principles of good faith, and perform obligations such as notification, assistance, confidentiality, and recycling of old items according to their trading habits. |
Chapter 7 | (Articles 1229–1235) of Title VII (Tort Liability) Lability for environmental pollution and ecological damage. |
Document | Content |
---|---|
Chapter 34 of Agenda 21 [32] | Environmentally sound technologies protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products and handle residual wastes in a more acceptable manner than the technologies for which they were substitutes. Green technology can be called environmentally friendly technology, clean technology, environmental technology or environmentally sustainable technology. The purpose of green technology is to protect the natural environment and resources, relieve the adverse effects of human beings on the environment, in order to “escort” the sustainable development of the environment. |
Guiding Opinions on Building a Market-Oriented Green Technology Innovation System [33] | Green technology refers to reducing consumption, reducing pollution, improving ecology, promoting the construction of ecological civilization and realizing a harmonious symbiosis of emerging technologies, mainly including resource-saving technologies and environmental protection technologies. |
Document | Content |
---|---|
Article 27 (2) of the TRIPs Agreement | Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law. |
Article 5 of China’s Patent Law | No patent right shall be granted for inventions—creations that violate laws, social morals or impair public interests. Non-green technologies are not conducive to environmental protection, and are not conducive to public interests. |
UK [35] | A “green channel” (introduced in 2009) allows applicants to request accelerated processing if the invention has environmental benefits. The application must demonstrate how the invention is environmentally friendly and which actions the applicant wishes to expedite (search, examination and/or publication), | To 2020, more than 2200 published patents have used the “green channel”, and the time from filing to grant of rights is approximately 11 months. |
US | Green Technology Pilot Program” [36] in 2009. Patent applicants can take advantage of the Priority Examination Program or the Accelerated Examination Program | It sets a goal of completing final processing within 12 months of initiating the advancement process, and it ended after received 3500 eligible applications. |
Japan [37] | Guidelines for Green Patent Issues. As long as it falls within the requirements of climate-friendly technology after review by a special examiner, it can enter the fast-track review channel. If it is not a climate-friendly technology after review, the chief reviewer will notify the applicant, reject the application for the fast-track review procedure, explain the reasons, and recommend entering the ordinary review channel | Once in the fast-track review, review report can be published within three months from the date of application |
China | (1) Administrative Measures for Priority Examination of Patents 2017 (SIPO) Article 3 stipulates that a patent application or a patent reexamination case under any of the following circumstances may request a priority examination: it involves energy conservation and environmental protection, a new generation of information technology, biology, high-end equipment manufacturing, new energy, new materials, new energy vehicles, intelligent manufacturing and other key national development industries | Get an examination opinion on whether to agree to carry out priority examination in 3 to 5 working days from the date of receiving the request for priority examination. For applications or cases that the SIPO agrees to carry out priority examination, from the date of agreeing, the first notice of examination opinion for invention patent applications shall be issued within 45 days and the case shall be closed within one year; utility model and design patent applications should be closed within 1 month; patent reexamination cases should be closed within 7 months; invention and utility model patent invalidation cases should be closed within 5 months; and design patent invalidation cases should be closed within 4 months [38]. |
(2) A rapid pre-examination system, Local intellectual property service centers provide rapid pre-examination services. Locally registered enterprises can apply for patent rapid pre-examination services in technical fields that are conducive to the development of local industries (generally new technology areas, including green technologies), The SIPO will speed up the examination of patent applications that have passed the pre-examination of the protection center. Inventors can obtain patents faster. |
Patent Type | General Application Channel | Priority Application Channel | Fast Pre-Qualification Service |
---|---|---|---|
Invention | 22–36 months | 7–12 months | 3–6 months |
Utility model | 7–8 months | 2 months | 1–2 months |
Design | 3–6 months | 1 month | 5–6 working day |
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Wang, Y. Has China Established a Green Patent System? Implementation of Green Principles in Patent Law. Sustainability 2022, 14, 11152. https://doi.org/10.3390/su141811152
Wang Y. Has China Established a Green Patent System? Implementation of Green Principles in Patent Law. Sustainability. 2022; 14(18):11152. https://doi.org/10.3390/su141811152
Chicago/Turabian StyleWang, Ye. 2022. "Has China Established a Green Patent System? Implementation of Green Principles in Patent Law" Sustainability 14, no. 18: 11152. https://doi.org/10.3390/su141811152