2019年3月18日,国务院公布了《国务院关于修改部分行政法规的决定》(“国务院决定”),并于公布当日起开始施行。引人注意的是,该决定对《技术进出口管理条例》作出修改,删去了其中关于技术进口合同不得含有限制性条款以及改进技术成果权属等规定。本文旨在对修改的内容和其可能对跨境技术交易可能产生的影响进行解读。
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On 1 January 2019, the Supreme People’s Court (“SPC”) officially established an appellate-level intellectual property tribunal (“SPC IP Tribunal”), which is somewhat similar to the US Court of Appeals for the Federal Circuit in terms of its function and role, in accordance with the Decision of the Standing Committee of National People’s Congress on Several Issues Concerning Litigation Procedures of Patent and other IP Cases dated 26 October 2018.
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在对前景知识产权完全归属一方的安排不能达成一致的情况下,很多合作方选择简单约定由双方共有,或一些跨境的技术交易会约定根据前景知识产权的产生地法律规定来决定。这看似是一条解决问题的捷径,但从法律角度来讲,这只是在一定程度上把问题拖延到下一阶段来商议解决,而且考虑到不同类型的知识产权在不同管辖区域的法律法规的差异性,这样安排反而可能造成更大的不确定性。
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When sending red packets on WeChat or making purchases on Taobao for the first few times, one might have this question in mind or for their friends: is it reliable, sending or receiving money with just a tap on the smartphone or a click of the mouse? They are no magic, just increasingly popular applications of electronic signature, or e-signature, in our daily life in an era of Internet and digital technology. In addition to the e-commerce scenarios above, it is already a common practice to transmit and retain files in electronic formats for business activities. However, legal instruments which are customarily regarded as more rigorous than e-commerce transactions are still generally forbidden or unnoticed for the application of electronic signature. In practice, when it is required to execute legal instruments officially, people would still print them out and affix their seals or signatures physically as they traditionally do. This would inevitably incur significant time costs for the execution process. Moreover, given the persistent issue of “fake stamps”, this time-consuming traditional approach may not necessarily render a higher reliability.
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