Zhu WANG

LLD., Ass. Prof. of Law School of Sichuan University Deputy Director of Institute for Chinese Tort Law of

RCCCJ of Renmin University of China.

Email: wangzhu@scu.edu.cn Website: www.chinesetortlaw.com

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General Principles of Civil Law

Paragraph 1 of Article 97: Citizens who make discoveries shall be entitled to the rights of discovery. A discoverer shall have the right to apply for and receive certificates of discovery, bonuses or other awards.

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Article 118: If the rights of authorship (copyrights), patent rights, rights to exclusive use of trademarks, rights of discovery, rights of invention or rights for scientific and technological research achievements of citizens or legal persons are infringed upon by such means as plagiarism, alteration or imitation, they shall have the right to demand that the infringement be stopped, its ill effects be eliminated and the damages be compensated for.

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Tort Liability Law Paragraph 2 of Article 2: For the purpose of this

law, civil rights or interests include personal or property rights or interests, such as right to life, right to health, right to name, right to reputation, right to honor, right to portrait, right to privacy, right to marital autonomy, right to guardianship, right to ownership, usufructuary rights, rights for security, copyrights, patent rights, exclusive trademark rights, right of discovery, stock right, right of inheritance.

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I. The origin of comparative law of discovery right A. Early attempt to protect discovery 1. The proposition of discovery right In 1920s, compared to writers and inventers,

unfair material return of discoverers in scientific research was gaining more and more attention by the public.

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In 1922, Prof. J. Barthelemy proposed a motion to the French government, petitioning for the abolishment of the policy that refused to grant patent to scientific discoveries. But his motion was not accepted.

The French government: before majority countries adopted the similar policies, patent exclusive to scientific discoveries would make French industry pay much higher permission fees than its competitors, thus rendering France in a disadvantage position in its development.

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2. Discovery right in Socialist countries 1947, former Soviet Union established national

registration system of scientific discoveries. 1961, Legislative Outline of Civil Law of Soviet

Union provides discovery right in a separate chapter.

Following Soviet Union, Czechoslovakia, Bulgaria and Mongolia established their own rules to protect scientific discoveries.

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3. Discovery right in international treaties 1967, WIPO Copyright Treaty accepted scientific

discovery as a type of intellectual property right.

1978, Geneva Treaty on the International Recording of Scientific Discoveries defined the scope, procedure and institution of international recording of scientific discoveries.

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B. Discovery right in Soviet Union 1. The discoverer is entitled to: 1.property right; 2.personal non-property right; 3.relative privileges.

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2. The discovery right is a right of scientific and technological achievement The discovery right is an exclusive right, but it did

not pose a conflict against individuals, collective laborers and the society.

In guaranteeing the well-being of the entire laborers, discovery right helped to promote the development of science and technology and the discovery of the objective world by ensuring the protection of rights of creators.

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3. The objects of discovery are: The laws, characteristics and phenomenon

of the material world that are determined in the development process of natural science and technology.

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4. The discovery should be of: 1.absolute novelty;

2.significant value;

3.objective empiricality.

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II. The establishment of discovery right in China A. Discovery right in the third draft of Civil Code

is a right of scientific and technological achievement

Civil Law Draft (First Draft), August 15, 1980; Civil Law Draft (Second Draft), April 10, 1981; Civil Law Draft (Third Draft), July 31, 1981; Civil Law Draft (Fourth Draft), May 1, 1982;

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B. Discovery right in General Principles of Civil Law is absorbed into the Intellectual Property Rights system Section Three “Intellectual Property Rights” of

Chapter Five “Civil Rights” of General Principles of Civil Law

Rights of authorship (Article 94) Rights of patent (Article 95) Rights of exclusive use of trademarks (Article 96) Rights of scientific and technological achievement

(Article 97)14

Rights of scientific and technological achievement (Article 97)

Rights of discovery (Para. 1 of Article 97)

Rights of invention and other scientific and other rights of scientific and technological achievement (Para. 2 of Article 97)

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III. Discovery right is not intellectual property right in nature A. Different opinions about the nature of discovery

right 1.“intellectual property right theory”; 2.“non-intellectual property right theory”; 3.“right of honor and rewards theory”.

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B. Discovery right is not intellectual property right: 1.“intellectual property right theory” is defective

in that for the discovery right be included in intellectual property right, the current concept of intellectual property right should be expanded, which in fact overturns the idea that discovery right belongs to the concept of intellectual property right;

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2.discovery right is not equal to intellectual right in nature, because the latter is guaranteed by the market mechanism, while the former is by the non-market mechanism;

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3.discovery right is manifested as a right to get honors and rewards, instead of exclusive right of use of scientific and technological achievement.

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IV. Disputes over discovery right in legal practice regard it as a right of honor in the field of science 1.“Taoyuan Big-Leaf Tea Case” (Gazette of

Supreme People’s Court, 2006-9) 2.“Muscular Dystrophy Case” (2000, Shanghai) 3.“New Method of Drug Abstention Case” (2005,

Zhejiang) 4.“Abnormal Chromosome Karyotype Case”

(2005, Canton) 5.“LI Peiqiao Case” (2005, Jiangsu, settled)

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V. Transform the Discovery Right into Right of Honor in the Field of Science Consideration: 1.discovery right is not considered as an

intellectual property right; 2.legal practice in China treats discovery right as a

right of honor in the field of science; 3.right of honor in the personality right law is too

ambiguous to be considered as an independent right.

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We suggest that by taking the opportunity of drafting Personality Right Law, we transform discovery right into the right of honor in the field of science, and consolidate it with rights of honor in the fields of politics, economy, humanity, arts, sports and so on to form a general right of honor.

This will serve as a clear practical legal basis for the protection of discovery right of scientific researchers.

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A. Purposes of the establishment of discovery right in Personality Right Law 1.promote and encourage discovery efforts in the

field of science; 2.help to avoid plagiarizing the discovery or false

representation of the discoverers; 3.provide legal protection to the creative

achievement that cannot be protected by patent.

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B. Moderate criteria to judge a discovery 1.relative novelty

2.relative significance

3.relative empiricality.

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C. The right of honor in the field of science 1.right of status of discoverer; 2.right of mental interests of the discoverer; 3.right to get certificates and material

interests; 4.right to name the discovery.

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D. Higher requirement Besides the field of science: 1.higher requirement for novelty:

astronomy, geography, archeology and paleontology;

2.higher requirement for significance: mathematics;

3.higher requirement for empiricality: factual judgment in the fields of social science.

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Thanks! Zhu WANG

LLD., Ass. Prof. of Law School of Sichuan University Deputy Director of Institute for Chinese Tort Law of RCCCJ

of Renmin University of China.

Email: wangzhu@scu.edu.cn Website: www.chinesetortlaw.com

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