| 知识产权司法保护与企业创新的互动机制研究——-基于专利侵权诉讼的分析 |
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| 引用本文： | 肖冰,肖尤丹,许可.知识产权司法保护与企业创新的互动机制研究——-基于专利侵权诉讼的分析[J].科研管理,2006,40(12):172-181. |
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| 作者姓名： | 肖冰 肖尤丹 许可 |
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| 作者单位： | 1.中国科学院 科技战略咨询研究院，北京100190；;
2.中国科学院大学 公共政策与管理学院，北京100049; |
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| 摘 要： | 以专利侵权诉讼为代表的司法活动通过对企业创新活动合法性的判断，实现了对企业创新活动的规范与引导。与此同时，面对企业技术创新与商业模式创新所引发的新社会关系与社会需求，司法活动必须通过适当的途径与方式克服法律规范性的滞后性，以适应社会经济发展的客观变化。因此，知识产权司法保护与企业创新之间并非是单向的影响与被影响关系，而是相互影响与相互制约的关系。揭示两者之间的互动机制对于规范企业创新活动、完善相关法律制度等问题均具有重要意义。
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| 收稿时间： | 2017-08-13 |
A research on the interaction mechanism of judicial protection of intellectual property and enterprise innovation——An analysis based on patent infringement litigation |
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| Xiao Bing,Xiao Youdan Xu Ke.A research on the interaction mechanism of judicial protection of intellectual property and enterprise innovation——An analysis based on patent infringement litigation[J].Science Research Management,2006,40(12):172-181. |
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| Authors: | Xiao Bing Xiao Youdan Xu Ke |
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| Institution: | 1. Institutes of Science and Development, CAS, Beijing 100190, China;
2. School of Public and Management, UCAS, Beijing 100049, China |
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| Abstract: | Patent litigation refers to all kinds of litigation related to patent right and related rights and interests conducted by the parties and other litigation participants in the court. Because litigation activities can affect the exercise of patent rights, enterprises will be restricted or restricted by judicial activities when they use or dispose of innovation achievements with patent as the main carrier. Then we can think that the judicial activities represented by litigation can not only identify the legal status of innovation results, but also restrict the trading rules and patterns involved in innovation activities. If we can reveal the specific path of the relationship between judicial protection of intellectual property rights and innovation activities of enterprises, it is of great practical significance for enterprises to regulate innovation activities and assess the legal risks of innovation. However, it is difficult to analyze the specific ways to realize the relationship between the two, because there are still differences in the research on whether the macro level legal protection can promote innovation, and the impact mechanism of intellectual property system on innovation activities is still controversial in theory.Therefore, in order to exclude the research disputes from the macro perspective, this paper focuses on the micro level analysis and Research on the relationship between the judicial protection of intellectual property rights and enterprise innovation activities. This paper chooses patent infringement litigation as the agent variable of intellectual property judicial protection, analyzes the impact of patent infringement litigation on enterprise innovation, and indirectly reveals the relationship between intellectual property judicial protection and enterprise innovation.First, study the impact of patent infringement litigation on enterprise innovation. In theory, patent infringement litigation can intervene the way and scope of patentee’s exercising patent right from two aspects of entity (result) and procedure (process), which are embodied in two categories: direct and indirect. The specific influence mechanism is as follows: (1) because of the uncertainty brought by tort litigation on innovation results and the legal status of R & D activities, it will affect the investment of enterprises in innovation, and then directly affect the innovation activities of enterprises. (2) litigation activities not only affect the image of the enterprise, but also hinder the investors’ judgment on the development expectation of the enterprise, and cause the changes of the goodwill and market value of the enterprise, thus indirectly affect the innovation activities of the enterprise. On the one hand, it is found that there is a more complex influence mechanism between patent infringement litigation and enterprise innovation, which involves many and scattered factors, leading to the relative high difficulty of quantitative research itself. On the other hand, because the relevant research not only needs comprehensive litigation activity data, but also depends on accurate business information. Although the above data can be obtained from the existing commercial database, it is difficult to achieve accurate matching between the two. Therefore, the research on the relationship between the judicial protection of intellectual property rights represented by tort litigation and enterprise innovation is limited.Second, study the impact of industry innovation on patent infringement litigation. The relationship between the judicial protection of intellectual property rights represented by patent infringement litigation and enterprise innovation is not one-way influence and affected. The relationship between them should be mutual influence and adaptation. The main reason lies in the fact that legal norms, as the basis of judicial activities, are accompanied by their normative and authoritative nature, which is difficult to overcome. This means that in the face of the new social relations and social needs caused by enterprise innovation activities, judicial activities must overcome the lag of legal norms through appropriate ways and means to adapt to the objective changes of social and economic development. Therefore, this part mainly starts from the substantive and procedural aspects of patent infringement litigation caused by enterprise innovation, and finds that the business model of enterprises will be affected by the evolution of legal system. At the same time, the change of business model is the motivation of the evolution of legal system. It highlights the rationality and legitimacy of the exercise of patent rights, which is not only the link between enterprise innovation and judicial activities, but also the direct way for enterprise innovation to affect judicial activities.Through the above comprehensive analysis, the interaction mechanism between the judicial protection of intellectual property rights and enterprise innovation is obtained. The specific performance is as follows: (1) enterprise innovation activities, including product innovation and business model innovation, have changed trading objects, trading rules and business habits, thus forming a new social relationship and market order system. (2) the new social relations and market order have brought new ways for the exercise of intellectual property rights, thus affecting the implementation of legal norms and promoting the continuous progress and innovation of legal norms. (3) judicial activities can judge the legitimacy of the way of exercising rights, and restrict and standardize the way and direction of enterprise innovation activities through continuous changes. The principle behind it is that legal norms are normative, which can be used to identify the legitimacy of the subject qualification, behavior and other aspects involved in enterprise innovation activities through judicial activities; at the same time, due to the lag of legal norms, they need to be constantly adjusted and improved in judicial activities to adapt to the changes and trends brought about by innovation activities.It is true that from the perspective of legal research, we can explain the necessity of interaction mechanism between innovation activities and judicial protection activities of intellectual property from the perspective of qualitative research. However, if we can further explain the influence mechanism between innovation activities and judicial activities from a quantitative perspective, we can not only improve the depth of theoretical research, but also form a more scientific and objective basis for decision-making, serving the national macro strategy and enterprise innovation plan. |
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