论我国国防专利转化利用及其制度完善——以“分级立项”制度构思为例

On the Commercialization and Utilization of National Defense Patents in Chinaand the Improvement of the System: An Example ofthe Idea of "Graded Project Approval" System

我国国防专利转化与运用制度在运行体系完善方面仍有较大提升空间,提升国防专利技术运用水平、提高国防专利技术转化效率已成为我国国民经济发展的重点突破方向。为有效解决国防专利实际转化利用过程中存在的体系封闭、信息获取成本高、资金来源单一等问题,应重新界定国防专利技术的含义,明确权利主体及财产权益归属,依据项目保密性要求从高到低设定不同路径,以分级立项制度促进军民融合项目落实,完善国防专利技术转化利用路径,提高转化利用效率。

The essence of innovation-driven development in the context of market economy is to put science and technology in the first place of the social productivity system,and to seek a better way to release the economic value of scientific and technological innovation.As an important part of the Chinese innovation system,the innovation of national defense science and the commercialization and utilization of national defense patent technology are both the backbone of the development,commercialization and upgrading of national economy.It is also a powerful guarantee of a strong nation in science and technology.But it should be pointed out that there is still much room to improve the effective operation system of the commercialization and utilization of national defense patent system.To improve the utilization level and the commercialization efficiency of national defense,the patent technology has become the key breakthrough direction of national economic development.The goal of this paper is to find a feasible and practical way to solve the problems in the commercialization and utilization of national defense patents.Therefore,this study adopts the classical research method of law.First,it puts forward a new definition of“national defense patents”.Then,it combs through the existing commercialization and utilization system of national defense patent,including two-way closure of R&D system,serious waste of scientific research resources,and high barriers of information access,etc.Aiming at those problems,this study analyzes the causes from the institutional level,including the defects in the legal system,the ownership of property rights and the declassification system.Finally,it further points out the essence of these causes at the legal level,that is,the conflict between"public welfare"and"private rights".Meanwhile it tries to bring forward the improvement path from the actual situation.It is concluded that the core of improving the commercialization and utilization efficiency of national defense patent technology is to express the subject of rights and the ownership of property rights.At the practical level,three different paths from high to low are set up according to the confidentiality requirement of the project,and the implementation of the civil-military integration project can be promoted by the"graded project approval"system to strengthen the commercialization and utilization of national defense patent technology.The innovation of this paper also comes down in line with the basic analysis of the previous paper.First,from the collision of"public welfare"and"private rights",this study condenses the friction and collision between"national defense security interest"and"social economic development",and then uses the method of"weighing of legal interests"to solve the above-mentioned conflict,which embodies the characteristic of stability of law development.Second,by referring to the advanced"graded confidentiality"system in the West,this paper puts forward the idea of"graded project"system which is suitable for China's national conditions.Rather than a general macroscopic framework,this paper puts forward a three-level conception from the highest to the lowest based on the confidentiality requirements of different national defense scientific research projects.The division of different levels can be verified by mature institutional experience outside the territory,and the prototype can be found in China's specific national defense scientific research practice.After the setting of each level is stated,it also demonstrates the rationality of the setting from the perspective of jurisprudence on the basis of the"legal interest weighing"method.Because it is difficult to provide a definite quantitative index on how to distinguish the"subversive innovation"from the"incremental innovation"behind the standard of level I and level III projects in the paper,the study is unable to provide clear guidance for practice.Therefore,more research results are expected to be published in order to promote the conversion rate of national defense patents effectively and serve China's economic construction and social development.