我国专利法在高技术知识产权保护中的局限性及成因分析

Limitations of China's Patent Law on High-Tech IPR Protection and Reasons

深入分析了我国专利法对高技术知识产权保护中在保护范围、保护时间、保护地域以及公开性保护等方面存在的问题,指出专利法保护高技术不力的一般原因是立法理念、科技发展水平、利益平衡因素,根本原因则在于专利权的法律特征无法在较大程度上体现高技术的技术特征。进而指出以商业秘密法保护为主,以其他的知识产权法保护为辅是我国高技术知识产权保护的最佳法律选择。

The reasons why China's Patent Law cannot offer a full and sound protection to high-tech intellectual property rights(IPR) are discussed in depth,involving the legally protective limits,prescriptive rights,regional legality of IPR protection and publicity of patents. It is found that in general the unsound protection can be attributed to the unsatisfactory legislative notions, the level at which the technology have been developing and benefit balancing factors. But, the most important reason is that the rapid high-tech development has not been characterized by the Patent Law that takes effect now in China. It is therefore suggested that the optimum legal option for high-tech IPR protection is taking the Law on commercial secret security as the core with some other auxiliary laws formulated and legislated for IPR protection to support it.