算法作为商业秘密的保护对象虽在实证法上得到确认,但其所具有的技术性、抽象性、易变性和不透明性等显著特点,给商业秘密侵权认定带来极大的挑战.目前,相关案件的审理通常采用"接触+实质性相同-合法来源抗辩"的侵权认定规则.尽管此规则在一定程度上缓解了算法商业秘密侵权案件的举证难题,但仍存在保护范围不清晰、实质性相同比对方法不明确以及公共利益抗辩界限模糊等问题.为解决这些问题,算法商业秘密侵权认定规则的完善,在保护范围上应定位于算法所传达的核心思想和逻辑;在实质性相同对比阶段,应将"基本一致"作为判断标准,并采用"内外部测试法"分别对算法的思想、表达各要素及整体进行比对;明确算法公共利益抗辩的适用场景,并基于算法正义,与预先审查算法透明度的制度和规则相衔接.

算法创作是指算法对现有的数据或数据集进行输入、学习以及训练,并依此输出相应的创作物.算法创作过程中,输入阶段,未经许可使用以及超范围使用会引发侵权风险,并将该风险延及全流程;学习阶段,"临时复制"虽然不构成侵权,但会抬升主体的注意义务;输出阶段,"表达性使用"存在侵权风险.鉴于现有的侵权豁免制度难以调适,应考虑构建标准与法律协同作用的治理体系,并扩大合理使用与法定许可规则的适用范围,以防范算法创作中涉数据的著作权侵权风险,顺应人工智能文化产业发展趋势.

数字经济时代,作为一种新型生产要素,数据已广泛应用于社会生产生活中,为了进一步挖掘数据的使用价值和交换价值,数据交易成为其全生命周期的重要环节.当前,各地数据交易条例与市场交易实践探索机制遍地开花,但是我国数据市场仍处于起步阶段,有关交易规则尚不明确,数据交易并不活跃,数据交易面临数据权属不清、数据利益难以评估定价、数据交易缺乏信任、作为兜底保护的法律有待完善等问题.因此,本文提出应建立健全数据要素法律体系、完善数据定价方法、促进数据要素流通等对策,以供参考.

人工智能的发展和进一步应用,已经成为不可逆的趋势.人工智能带来福利的同时,也带来一定的风险.通过可信人工智能标准体系构建的方法,可降低人工智能所带来的风险.可信人工智能要求人工智能系统具备可解释性、无歧视性和数据安全性.域外可信人工智能标准体系建设主要存在伦理概念标准建设和技术标准建设两种途径,并已经有相关的可信人工智能标准体系建设总纲.我国可以参照域外的经验,建设可信人工智能标准体系总纲,加强人工智能伦理标准体系建设和技术标准体系建设,确保人工智能系统的可信性.

《个人信息保护法》第13条第1款第2项前段"为订立、履行个人作为一方当事人的合同所必需",确立了合同订立与履行中个人信息处理行为的合法性基础.其中,就"合同"的适用应限定于民事合同关系;"订立与履行中"可解释为从先合同义务中的"合同准备"到合同履行完毕这一全过程.主体要件"个人作为一方当事人"应作目的论限缩,个人信息主体需满足年龄与民事行为能力双重要件.对"必需"的判定应当以合同目的作为判断基准,且禁止将个人信息处理行为直接作为合同目的,必要时可引入"场景理论"模型开展续造工作,结合合同类型、合同关系的内容以及基本目标,比照规范性文件、交易习惯等予以确定.

国家标准、行业标准与地方标准属于政府颁布标准,相对于市场自主制定标准,政府颁布标准的可版权问题存在较多的争议.应将其置于法解释论下,以《著作权法》为核心作规范分析.此3类标准属于著作权法所保护的"作品",并且除强制性国家标准外,均不属于《著作权法》第5条第1项所规定的"法律、法规、国家机关的决议、决定与命令",也不属于"其他具有立法、行政、司法性质的文件",应肯定具有可版权性.基于该区分,在实践中可分别以专有出版权与著作权予以保护以应对侵权问题.如此可积极响应《国家标准化发展纲要》所提出"建立标准版权制度"目标,提供制度建设与完善的因应之道.

Biotechnology Law ReportVol. 41, No. 3 Original ArticlesFree AccessChina's Challenges in Implementing Compulsory Drug Patent Licenses and its Response in the Context of COVID-19By Peng Feirong, Mao Tian, and Chen JunhuaBy Peng FeirongPeng FeiRong is member of the Law School of China Jiliang University in Hangzhou, China. Peng FeiRong is an Associate Professor, specializing in patent law. His project is supported by Humanities and Social Sciences Research Planning Fund of the Ministry of Education of the People's Republic of China (Grant No. 21YJA820015).Search for more papers by this author, Mao TianMao Tian is member of the Law School of China Jiliang University in Hangzhou, China. Mao Tian is a Postgraduate, engaged in patent litigation research.Search for more papers by this author, and Chen JunhuaE-mail Address: chenjunh@cnis.ac.cnChen JunHua is an Assistant Research Fellow from China National Institute of Standardization.Search for more papers by this authorPublished Online:15 Jun 2022https://doi.org/10.1089/blr.2022.29270.pfAboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail In the past two-plus years, the COVID-19 pandemic has devastated most countries in the world, and the continuous emergence of mutant viruses has put research on therapeutic drugs in jeopardy. Globally, some countries are preparing to implement compulsory licensing of medicine patents in response to risks to their healthcare systems. The system of medicine patent compulsory licensing refers to the use of a patent without the permission of the patentee, in exchange for an exploitation fee, upon application by the applicant. This system is a provision of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) concerning patented medicines which are related to public health. TRIPS has been a global agreement, but there are different opinions on the design and implementation of the compulsory licensing system.The theme of this research is “COVID-19” as an entry point to examine whether the Chinese government will implement the compulsory licensing of patented medicine in China in response to a pandemic. The goal is to provide suggestions on the difficulties China faces in implementing this system in light of legal provisions and international experience. This study first analyzes the historical evolution of China's Patent Law and its supporting regulations on the patent compulsory licensing system; second, it briefly analyzes the challenges faced by the system in China; and finally, it makes some suggestions on how China can improve the system.I. Historical Evolution of China's Compulsory Licensing System for PharmaceuticalsChina's current Patent Law was adopted in 1984, but at that time, China was in the early stage of legal reform, and drugs were excluded from the scope of protection. In 1992, the revised Patent Law deleted the provisions of the 1984 Patent Law that drugs and chemical substances were not granted patents and instead granted a 20-year protection period for drugs and chemical substances. At the same time, the application of the patent compulsory licensing system was also specified in the legislation for the first time. The amendment of the Patent Law was, to some extent, a product of the continuous promotion of trade competition between China and the United States, but it also followed the international trend developing at that time and basically satisfied the provisions of the TRIPS Agreement.1 In the fourth revision of the Patent Law on October 17, 2020, the title of Chapter 6 was amended from “Compulsory Licensing of Patent Implementation” to “Special Licensing of Patent Implementation.” The newly amended Patent Law continues the provisions of the 2008 Patent Law on the compulsory licensing system for patented medicine. So far, China has stipulated five situations for the compulsory licensing of patents: failure to implement or full implementation (Article 53), monopoly behavior (Article 53), emergency or extraordinary circumstances or public interest, public health purposes (Article 54), and implementation dependence (Article 13). If we take COVID-19 as an opportunity to analyze China's attitude towards the adoption of compulsory licensing of drug patents under large public health events, it is roughly as follows.A.According to Article 3(3) of the Measures for Compulsory License for Patent Exploitation, the relevant competent department of the State Council may initiate the compulsory licensing mechanism, and after the State Intellectual Property Office accepts the proposal, it may grant a compulsory license to a designated entity satisfying the conditions for patent exploitation. In 2018, the General Office of the State Council issued the Opinions on Reforming and Improving the Policy for Supply Guarantee and Use of Generic Drugs, further clarifying that the competent department for this subject is the National Health Commission of the PRC, The Ministry of Industry and Information Technology of the PRC and State Food and China Food and Drug Administration (now NMPA). Other than the aforesaid competent department, which has the right of recommendation, the rest of the topics and persons or entities covered by these Opinions are the right of application, which connotes any unit or individual meeting the conditions for implementation; units with conditions for implementation, such as the manufacturing and export of specific drugs; and the patentee or previous patentee of a dependent patent. The strict subject matter restrictions in the previous regulations were widely criticized, and scholars believe that any person or legal or unincorporated organization that may have an interest, even if the conditions for implementation do not exist, can file an application.2 However, the expansion of the scope of the subject will also lead to the abuse of rights and damage the interests of the patentee.B.China has not yet recorded the implementation of a compulsory license for a patented medicine since its establishment. Since the establishment of the World Trade Organization (WTO), about 20 countries have privately or publicly issued compulsory licenses for one or more pharmaceuticals.3 In comparison, the Patent Law of the People's Republic of China currently has only a symbolic meaning, and the patent administration and judiciary accordingly lack experience in determining the state of emergency, public interest, scope of licensing, and amount of compensation.The review of whether to grant a compulsory license for a patented medicine in China consists of three review steps. The first step is a review and decision on whether to grant a compulsory license for a patented medicine; the second step is the award of royalties for the compulsory license for a patented medicine; and the third step is the review and decision on the termination of the compulsory license request. It has been argued that the Chinese legislative technique is not defective, but that there are fundamental restrictions on compulsory licensing implementation at the Chinese policy level.4 It has also been argued that the implementation of a compulsory license for a patented medicine may intensify international trade frictions and trigger public opinion, economic, and other pressures; therefore, China is cautious in the implementation of compulsory license for a patented medicine.5In 2003, when the SARS epidemic broke out in China, the China National Intellectual Property Administration promulgated the Measures for Compulsory License for Patent Exploitation (2010, expired laws) and the Measures for Compulsory License on Patent Implementation concerning Public Health Problems (expired laws), which refined operational provisions such as the examination criteria and termination circumstances of compulsory licensing. Now that China is ushering in the second revision of its patent enforcement rules, we can expect the Chinese government will take this opportunity to make changes to the compulsory licensing system for patented medicine.II. Challenges of China's Compulsory Licensing System for Patented Medicine in the Context of COVID-19The compulsory licensing system for patented medicine has a long history in the international arena. The Paris Convention for the Protection of Industrial Property proposed that some patents could be compulsorily licensed until 1995, when the TRIPS Agreement included the protection of patented medicines and also made special provisions for compulsory licensing of patented medicines. In 2001, WTO's Doha Declaration further strengthened the compulsory licensing system for patented medicine. The TRIPS Agreement and the Doha Declaration on Public Health of 2001 further strengthened the compulsory license of a patented medicine, considering that the protection of patented medicines cannot be an obstacle to the protection of public health in member countries and that the public interest takes precedence over the protection of patent rights.Since its establishment, this system has not really been implemented in most countries. Internationally, South Africa, Malaysia, Indonesia, Thailand, and several other countries have implemented compulsory licensing of drug patents, mostly for infectious disease drugs, anti-tumor drugs, and anti-cancer drugs. However, the United States, Canada, Brazil and many other countries, although they have recognized compulsory licensing in their legislation to varying degrees, have not really implemented it, whether for anti-AIDS drugs, anthrax drugs, or human immune disruptors. Rather, they have used compulsory licensing as a means of negotiating lower prices for patented drugs.6 In contrast, the application of the compulsory license system for a patented medicine in China is still in the early stage of development; hence, it still faces many challenges in the context of COVID-19.A. The application subject is too restricted and narrow in scopeAt present, the mainstream practice in the world is not to impose any restrictions on the subject of the application.7 However, drug firms reacted strongly to this open-ended statute. According to Article 6 of Measures for Compulsory License for Patent Exploitation (2012), when there is a state of emergency or extraordinary circumstances, or for the purpose of public interest, only the relevant competent department of the State Council can be the subject of application. Article 7 stipulates that for the purpose of public health, only units with implementation conditions can apply for compulsory licensing. The result of this system is that the individual cannot become the subject of compulsory licensing applications, and “with the implementation of the conditions” a lack of quantifiable criteria makes it difficult to implement the system.B. Opaque licensing and litigation proceduresThe procedure in China is complicated and the process is time-consuming. According to Patent Law of the People's Republic of China, an eligible applicant shall submit a request to the patent administrative organ under the State Council and shall submit the documents required by the Patent Law along with a description of the applicant's eligibility to enforce the patent. It shall also prove the failure to sign an implementation license contract with the patentee on reasonable terms and conditions with relevant materials. Coincidingly, the lack of time limits for the various aspects of the initiation procedure and the lack of specific and clear explanations in the relevant laws as to what specific conditions the applicant should have for implementation have undoubtedly increased the difficulty of the application.C. Lack of standards for royaltyThe relevant laws on compulsory licensing of a patented medicine do not provide for a clear calculation of the royalty rate for compulsory licensing. Article 62 of the Chinese Patent Law stipulates that the entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable royalty or deal with the royalty issue under the relevant international treaties to which the People's Republic of China has acceded. If a royalty is to be paid, the amount of the royalty shall be decided by both parties upon negotiation. If the parties fail to reach an agreement, the issue shall be settled by the patent administrative department of the State Council. There is no clear provision on the calculation standard of compulsory royalty for patented medicine, which makes it difficult for the legitimate interests of patentees to be effectively protected.D. Lack of provisions on the effective time of licensingThe Patent Law of the People's Republic of China does not clearly stipulate the effective time of the compulsory license for a patented medicine, which will cause inconvenience and trouble in the subsequent practice of compulsory licensing of drug patents. In assuming the time limit for the completion of relief by the patentee, it is likely that the time for dealing with the health crisis will be missed. In addition, there is a possibility that this will lead to malicious litigation by the patentee and delay the effective implementation of the compulsory license for a patented medicine.III. Suggestions or Countermeasures for Improving the Compulsory Licensing System of Chinese Patented MedicineAt present, there is no amendment to the compulsory licensing system published in the Patent Law (2020), but this does not mean that the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China and other supporting provisions will not be changed. Compared with the legal systems of other countries, China's compulsory licensing system for patented medicine has the following areas for improvement.A. Clear positioning of the systemOther nations have clearer ideas of the purpose of compulsory licensing, or at least the purposes to which they wish to put the system. For example, the main purpose of the Thai government in implementing patent compulsory licensing is to meet the domestic demand for drugs, and the system is intended to achieve access to drugs. The Indian government not only aims to achieve access to drugs, but also exports a large number of generic drugs to obtain economic benefits, so the Indian patent law has an enumerated explanation for “the public's reasonable demand is not satisfied” in regard to the quantity, quality, price and supply of drugs. The Indian Patent Law therefore has an enumerated interpretation of the “failure to meet the reasonable requirements of the public,” which is defined in terms of the quantity, quality, price and the reasonable needs of the public, which makes its regulation more obvious.8 The United States and Germany tend to adopt the system as a bargaining tool. In the COVID-19 era, some countries have openly considered compulsory licensing as part of their COVID-19 response. On March 24, 2020, for example, Israel issued a compulsory license to import generic versions of AbbVie's Lopinavir/Ritonavir (Kaletra).9 The legislatures of Canada,10 Chile,11 and Ecuador12 have also taken legislative measures to ensure that their governments can quickly issue compulsory licenses. In a similar vein, China could therefore enact legislative measures to ensure that its government can issue compulsory licenses quickly. China should clearly position the compulsory licensing system so that compulsory licensing of patented medicines should first meet domestic demand rather than be used as a means of export profitability; additionally, the system should be applied with caution in cases where bargaining can solve the problem. Instead of triggering a lawsuit, the proposal of a compulsory license statute might encourage the government and the patent holder to negotiate a prespecified price. A negotiated agreement would benefit both parties.13 Finally, the legal provisions should be refined, and the legal procedures simplified to facilitate the implementation of the system. The intended benefits of a poorly drafted compulsory license, therefore, may not reach the consumer. The result is little more than a transfer of wealth from the original inventor to the imitator rather than consumers.B. Clarify the connotation of the systemThe provisions on public interest and public health in China's Patent Law are too abstract. Take COVID-19 as an example: it should fall under the situation of “national emergency” as mentioned in Article 54 of the Patent Law, where compulsory licensing can be implemented. The reason is that Article 54 of the Patent Law provides that “where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative department of the State Council may grant a compulsory license to exploit the patent for an invention or utility model.” The National Health Commission of the People's Republic of China issued Announcement No. 1 of 2020 on January 20, 2020, to include COVID-19 as a Class B infectious disease managed under the Law of the People's Republic of China on Prevention and Treatment of Infectious Diseases (2013 Amendment), and to take preventive and control measures for Class A infectious diseases.14 For the definition of “state of emergency”, we can refer to Article 69 of the Emergency Response Law of the People's Republic of China, which allows the implementation of compulsory licensing for patents. Similarly, other major infectious diseases can be determined in accordance with the above two laws.C. Establishing a negotiation mechanism and improving the relief mechanismCompulsory enforcement of drug patents can enhance the accessibility of drugs, but blindly starting compulsory licensing of drug patents can cause international trade disputes and friction. In fact, referring to the aforementioned foreign practical experience, the real value of the drug patent compulsory licensing system lies in incentivizing a patentee to sign a patent licensing contract with an enterprise or individual who has offered reasonable terms, so as to avoid losing the opportunity to negotiate freely due to the implementation of compulsory licensing. In the case of patent compulsory licensing, the Chinese government can use the deterrent effect of patent compulsory licensing to compel the relevant companies to license their patents to domestic enterprises at reasonable prices. Once a drug patent right is subject to compulsory licensing by the Chinese government, according to the Rules for the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China (2021 Draft for Public Comments), before implementation, the Chinese patent administrative authorities shall register and announce the applicants who are allowed to implement the compulsory license, and no objection shall be raised before implementation. At this stage, the patent owner of the drug may raise an objection and the administrative organ shall initiate the objection review procedure. After implementation, if there is an objection to the amount of implementation royalty, the patent holder is authorized to file a lawsuit in a Chinese court within three months, according to Article 63 of the Patent Law of China. Such a robust remedy mechanism can both improve China's compulsory licensing system for patented medicine and effectively reduce bilateral trade frictions.Compulsory licensing of patented medicine is a powerful public health tool—it can help alleviate the lack of supply of essential drugs and reduce the prices of overly expensive drugs. The problem with compulsory licenses is that they provoke unintended reactions from patent holders and cause nations to suffer unintended economic consequences. While patent protection is necessary to support innovation, there are exceptions in the form of compulsory licensing for public health emergencies (such as the current COVID-19 crisis). Governments must take the necessary steps to combat current epidemics. As China is the largest developing country and has a large consumer market for pharmaceuticals, if it must issue a compulsory license, it must do so in a fashion that genuinely conveys a commitment to improving public health. The development and implementation of this system has enormous influence. As a double-edged sword, this system needs to be continually evaluated, developed, and improved in order to play its rightful role in enhancing public health and safety and increasing China's participation in international intellectual property protection discussions on patented medicine.1 Yang Jun, Study on the Conflict Between Pharmaceutical Patent Protection and Public Health and International Coordination Mechanism, East China University of Political Science and Law, PhD Dissertation (2006).2 Zhang Wujun, and Zhang Bohan, Study on the Compulsory Licensing of Drug Patents Under the New Crown Pneumonia Epidemic - Taking Raltegravir as an Example, Science and Technology Progress and Countermeasures, 37.20:83-88 (2020).3 Beall R, Kuhn R, Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration: A Database Analysis, PLOS Medicine, 9: e1001154 (2012), 10.1371/journal.pmed.1001154 [PMC free article] [PubMed] [CrossRef] [Google Scholar]4 Ding Jinxi, Yao Xuefang, and Liu Weijing, A Study on the Policy Positioning of Compulsory Licensing of Pharmaceutical Patents in China - A Quantitative Analysis Based on Global Cases of Compulsory Licensing Implementation of Pharmaceutical Patents, Chinese Journal of New Drugs 25.18: 2136-2141 (2016).5 Harris D., TRIPS After Fifteen Years: Success or Failure, as Measured by Compulsory Licensing,Journal of Intellectual Property Law;18:387 (2010). [Google Scholar]6 Will China Become the Next India Due to the Implementation of Compulsory Licensing of Drug Patents?http://gpj.mofcom.gov.cn/article/zuixindt/201509/20150901120366.shtml Accessed: January 26, 2022.7 Before the epidemic, legal provisions can be referred to in Article 84 of the Indian Patent Law; in Article 24, paragraph 1 of the German Patent Law; and in Article 93 of the Japanese Patent Law.8 Li Changfeng. Defects of China's Drug Patent Compulsory Licensing System and the Path of Improvement, Administration and Law, 02:95-105.doi (2019).9 Kass D., Israel Defies AbbVie IP to Import Generic Drugs for COVID-19, March 19, 2020. Available: https://www.law360.com/articles/1255079?scroll=1&related=1. Accessed: 27 January 2022.10 COVID-19 Emergency Response Act, S.C. 2020, C-13 (Can.).11 Proyecto de Resolución N° 896, Resolution for Involuntary Licensing of Patents Relating to Coronavirus, Cámara de Diputadas y Diputados [Chamber of Deputies], Mar. 17, 2020 (Chile).12 Resolution for Compulsory Licensing of Patents Relating to Coronavirus, Comisión Especializada Permanente de Educación, Cultura y Ciencia y Tecnología de la Asamblea Nacional [Education, Culture, Science and Technology Commission of the National Assembly], Mar 20, 2020 (Ecuador).13 Bird, Robert C., Developing Nations and the Compulsory License: Maximizing Access to Essential Medicines While Minimizing Investment Side Effects, Journal of Law, Medicine & Ethics 37.2: 209-221 (2009).14 http://www.gov.cn/xinwen/2020-01/21/ content_5471158.htm. Accessed: 27 January 2022.FiguresReferencesRelatedDetails Volume 41Issue 3Jun 2022 InformationCopyright 2022, Mary Ann Liebert, Inc., publishersTo cite this article:By Peng Feirong, Mao Tian, and Chen Junhua.China's Challenges in Implementing Compulsory Drug Patent Licenses and its Response in the Context of COVID-19.Biotechnology Law Report.Jun 2022.154-159.http://doi.org/10.1089/blr.2022.29270.pfPublished in Volume: 41 Issue 3: June 15, 2022Online Ahead of Print:June 7, 2022Keywordspharmaceutical patentpatent compulsory licenseChina's pathPDF download

科技型研发企业知识产权风险防范是落实浙江高质量发展建设共同富裕示范区的重要举措之一.目前,浙江省科技型研发企业仍存在专利侵权、技术秘密泄露、创新成果未保护或保护不当、研发成果转化率较低、职务发明纠纷较为频繁等知识产权风险.而防范这些风险的主要策略在于,科技型研发企业需要从自身做起,强化知识产权保护及风险监管机制,健全知识产权风险管理制度,培养知识产权复合型人才,注重科技成果转移转化,推动企业搞好国际国内知识产权布局.

专利代理师品质优劣事关营商环境建设和知识产权强国战略.对于浙江省来说,当前专利代理师发展仍存在整体数量不多、素质良莠不齐、高科技领域人才稀缺、学历层次不足等一系列问题.人才高质量发展是提升浙江省专利代理师人才层次的一种重要途径.浙江省专利代理师高质量发展应优化专利代理师育成的营业环境,引导专利代理师发展的业态结构,拓宽专利代理师的专业化路径,强化高层次专利代理师的培养,完善专利代理师行业监管,提高专利代理师的国际化水平.

突破中小微文化创意企业的"融资难"瓶颈,尤其是融资风险的防范问题,是文化创意产业可持续发展的关键所在.因此,建立以完善知识产权价值评估机制为核心,政府政策导向的风险分担机制为主导,知识产权融资担保方式、银行金融产品、保险机构保险产品创新为辅助,对文化创意产业知识产权融资风险系统化监管为补充的风险防范体系十分必要.

在现行民事诉讼举证规则下,专利执行保险条款加重了专利权人的举证责任,这导致专利维权举证难、成本高现象突出,同时抑制了科技型中小企的技术创新动力.为减轻专利执行险诉讼中专利权人的举证责任,我们可从两个层面入手:一是在现行法的框架下,借助《最高人民法院关于适用<中华人民共和国民事诉讼法>的解释》的规定,明确专家证据的可采性,减轻专利权人对技术性问题的举证责任;完善《专利法修订草案(送审稿)》的内容,重新分配专利执行险诉讼中专利权人的举证责任.针对不同的专利类型,通过减轻专利权人在专利侵权诉讼时的举证责任,降低专利权人在专利执行险诉讼时,对调查、取证费用的理赔数额.二是在制度设计上,对专利执行险条款“不保范围”作出调整,适当地扩大保险人的承保范围,从整体上减少专利执行险诉讼的争议点,进一步减轻专利权人的举证责任.

The problem of "questionable patents" which has emerged in the risk society has been challenging the traditional mode of the patent examination, and therefore it requires us to learn from foreign experience in the public patent review, and introduce the public participation mechanism on the basis of amending Article 5 of the Patent Law, aiming at changing the traditional patent examination to stop the increase of "questionable patents" .

风险社会背景下,社会法学研究理应关注中国现代化进程中所产生的诸多社会风险,以提升政府的风险管理能力。"‘7·23’甬温线动车事故"作为一个典型范例,大众传媒报道、公众情绪反应和概率忽视等因素综合促成的公众风险恐慌,需要政府审视网络言论自由的界限、以风险信息披露为基础的风险沟通制度,并建立一种以技术化、专业化和规范化为基础的风险管理制度。

In view of the National Intellectual Property Strategy and the SME Financing Dilemma similar to the "Wenzhou debt crisis",the amendment to the insurance law should consider intellectual property financing insurance,especially the legal system application in intellectual property financing performance guarantee insurance and credit insurance,intellectual property valuation insurance,to relieve banks from financing risks.

The mainstream researches of the older people's health risks have focused on the socialization of old age support and health care.Obviously,these do not fit the current situation of China.Therefore,under the conditions of the current limited resources(including health care resources),government should effectively regulate the older people's health risks to minimize the economic costs to prevent the amount of the elderly patients,and save social resources.

分析《法商研究》刊载的经济法学研究会10年(2001-2010)年会综述文本,发现在我国经济法学知识系统的建构中存在两种策略:一是直接借助于时代主题(热点话题)的推动,二是间接依赖于书写形式的渲染。而支配着这个知识结构的基本意图,就是要使中国经济法学紧紧围绕着国家(政府)与市场的关系这一主线展开说明和论证。基于这样一种知识生产和传播的方式,我国经济法学虽然显示了其符合经济法的政策性特征和与时俱进的风格,但在很大程度上拉开了与传统法学和现实法律需求的距离。为此,有必要从知识结构的视角关注、矫正我国经济法学的研究风格和发展径路。

Traditionally,the distributive justice which government responsibility is concerned with is equivalent to the justice of wealth distribution,and rarely involves the justice of risk distribution.Strictly speaking,the latter should become its new content.Because it would increase the cost of people's lives,so we should pay attention to the justice of risk distribution.

As there are many misunderstandings in the controversy about the adjusting object and status between economic law and civil law,it is necessary to re-understand it and discover its historic importance.Through the inspection of specific historical perspective,we find that the value of the controversy displays in two aspects.On one hand,it is benefit to understand the legal seience research,and economic law gains independent legal status.On the other hand,it is benefit to economic law reforming,and mang unique styles present in economic development,such as three Yuan structures,problem-solving,the Extra-angle of law,constitutive research,and so on.

2007年相关司法解释虽已明确"危及公共安全"是构成破坏电力设备罪的客观要件,但由于没有确立"危及公共安全"的判断标准,所以并没有从根本上解决定罪纷争。基于这一阙疑,有必要对、"具体危险状态"能否作为破坏电力设备案件定罪的客观要件要素以及被盗、毁的电力设备及其购置、更换、修复费用应否计入"直接经济损失"等问题进行分析研究,以确立"危及公共安全"的量化标准。

In the epistemological sense,jurists had already presupposed certain distinctions between various risks,which lead to corresponding strategies in case of different risks.On the base of the crisis/risk difference of financial market,it is found that the crisis is inevitable and the relevant superversion lags behind.It results not only from the risking nature of cause,but also the possible conflict and contradiction on the law of crisis since it is hard to reach a consensus on the surveillance because financial risks are examined from different schemata of risk/safety,risk/benefit and risk/culture.It is noteworthy that only under the guidance of the risk/culture distinction,may there be the potential to improve the observation capability and seek out response strategies for the risks inappropriate for the Chinese context.