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| The Conceptual Dilemma on the Ownership of Scientific and Technological Achievements and Its Correction |
| Li Zhenggang |
| (Chongqing Academy of Science and Technology for Development, Chongqing 401123, China) |
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Abstract The formulation of ownership laws and policies for the job-related scientific and technological achievements is an important way to promote the transformation of the job-related scientific and technological achievements, and hence there is the need to define the concept of "ownership of scientific and technological achievements" which is accompanied by the reform of the ownership for the job-related scientific and technological achievements. So far, there are more than 100 national policies involving this concept, and the Scientific and Technological Progress Law of the People's Republic of China (2021 Revision) and the cities such as Chongqing, Shenzhen, and Chengdu have directly set the "ownership of scientific and technological achievements" into the legislation. "Ownership of scientific and technological achievements" as a policy term is created by the idea that scientific and technological achievements are "owned by the state" in the planned economic system. #br#However, the "ownership" protection model designed within the mindset of "state ownership" cannot solve the problem of the vacancy of subject in the distribution of property interests of scientific and technological achievements. "Ownership" has a specific context and meaning in law, and "ownership of scientific and technological achievements" does not conform to the logical self-consistency derived from the concept of jurisprudence. First of all, the dual attributes of personal rights and property rights possessed by the "scientific and technological achievements" make it impossible to become "property" in civil law. If it is included in "ownership", it will have an impact on the existing "object specific" principle of ownership in civil law, which violates the basic rules that civil rights are divided into property rights and personal rights, and will also cause the disorder of the rights system in civil law. Secondly, the types of scientific and technological achievements involved in the transformation of scientific and technological achievements completely overlap with the protection objects of intellectual property rights in the Civil Code in China. The protection of various scientific and technological achievements can be solved by adding relevant systems in the framework of the existing intellectual property system. Therefore, there is no need to create a concept of "ownership of scientific and technological achievements" that is incompatible with the traditional ownership system in civil law. Thirdly, there is no legal right directly in the name of "ownership of scientific and technological achievements" in the division of civil rights. When discussing the transformation of scientific and technological achievements, Chinese scholars often use the Bayh-Dole Act to elaborate on the "ownership of scientific and technological achievements". However, the amendment does not provide for the so-called "ownership of scientific and technological achievements" and Chinese scholars misread and mistranslate relevant provisions of the law, and the creation of the concept of "ownership of scientific and technological achievements" has no judicial significance. #br#In order to maintain the authority of the Civil Code that has come into effect soon, correct the non-standard use of the term "ownership" in legislation, and avoid the evolution of "ownership of scientific and technological achievements" into a concept confused with real rights and intellectual property rights, the protection method of "exclusive rights" should be adopted by borrowing modern knowledge products, and expressions such as "attribution of rights of scientific and technological achievements", "intellectual property rights of scientific and technological achievements", and "exclusive rights of scientific and technological achievements" should be used in legislation and policy terms, for the expression of "exclusive right" does not change the nature of "ownership of scientific and technological achievements", and it highlights the property interests available to the obligee with the implication that the ownership of scientific and technological achievements is superior to intellectual property rights. Thus the concept creation conforms to the concept of Civil Law, and there is also the need to explore the exclusive concepts that shape the allocation of rights involved in the transformation of scientific and technological achievements.#br#
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Received: 15 May 2022
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