Research On The March-in Right In The Transformation Of Achievements Of Government-funded Science And Technology Projects

In the current legislation of science and technology,March-in Right from the Bayh-Dole Act of the United States has been introduced into the transformation of scientific and technological achievements as an intervention mechanism to ensure the effective and full transformation of government-funded scientific and technological achievements,and the latest revision will be made in 2021.However,the provisions of March-in Right in the Science and Technology Progress Law are not enforceable enough,and most of the rules of March-in Right are absent,resulting in the system has no actual deterrent power.Therefore,how to establish and improve the system of March-in Right in the transformation of scientific and technological achievements has become a major practical problem to be solved urgently.This paper starts from the theoretical construction of the r March-in Right system,combined with the research on the regulation of the March-in Right intervention in the transformation of government-funded achievements in other countries and regions,and finds that the March-in Right has the characteristics of both public law and private law,science and technology law and administrative law,which reflects the dual nature of rights.At the same time,the March-in Right is the general concept of government power,and its right allocation should be divided into three rights: the right of government permission,the right of government supervision and the right of government use.Each right has its own system connotation.Based on this,through the analysis of scholars’ research literature and the comparison of legal systems in different countries or regions,this paper elaborated the respective status quo and institutional predicament of the three rights in the allocation of the March-in Right,and put forward corresponding suggestions for improvement.On the whole,the system of the March-in Right reflects the nature of dual rights,but because of the natural administrative status of the government,the nature of the right is dominated by inequality,which reflects the characteristics of administrative advantage.The right of intervention is not limited to the post-transformation stage of scientific and technological achievements.The government should exert its responsibilities and intervene in the whole process of scientific and technological transformation to supervise,regulate and guide.Regarding the government permission right,the legal system situation in our country is that the entity provisions are vague and general,the procedural provisions are absent,and the rights can not be effectively implemented.We should improve the entity law and procedural law of the permission right to ensure that it can be effectively started as the center of the March-in Right.As for the right of government supervision,in addition to the regular report evaluation and assessment system after the transformation of achievements stipulated in the science and technology legislation and encouraging the first use in China,it is also necessary to clarify that the government enjoys the right of supervision in the whole process and stages of the transformation of science and technology,so as to ensure the government’s macro-control.As for the right of use,it is the same as the right of license in terms of procedures.The main direction of improvement lies in the establishment of the entity legal system,avoiding the government’s repeated investment in the results of funding transformation,perfecting the connection between the right of use system and the administrative law system,recognizing that the content of the right of use agreed in the administrative agreement is valid and can be used as the basis for the exercise and relief of rights.