As an industrial enterprise, is it better to apply for a patent or protect it as a technical secret?
It depends on your technical solution. If it is a very important technology for the enterprise, Moreover, after the patent is disclosed, it is easy to be stolen and improved by the other party, so it is better to protect it as a technical secret. Otherwise, patent protection can be applied for. Should it be applied for a patent or used as a trade secret?
As you know, there are two ways to protect inventions and creations: one is to apply for patent protection at the expense of disclosing the technology; the other is to not apply for patent protection and adopt technology Protect in secret.
Applying for a patent requires considerable manpower and financial resources, and even if a patent is obtained, patent protection is subject to regional and time limitations, that is, patent protection is only valid in the country and region that granted the patent. And it is valid within the protection period stipulated in the patent law. In addition, some patent applications are at risk of being rejected, and even if patent rights are granted, they are also at risk of being invalidated.
Technical know-how is also called technical secret. As the name suggests, technical know-how does not belong to the public technology category and is not suitable for patent application. Various confidentiality measures need to be taken to protect it. The advantages of adopting the technical know-how protection method are: there are no various application, review, and payment procedures; the disadvantage is that the protection is relatively weak. The licensee is mainly obliged to keep confidentiality through signing a licensing contract. If confidentiality is not strict, it will be violated by a third party. Having acquired this technology, only the parties to the contract can be held accountable, not third parties. If a third party independently develops the same technology, not only cannot its use be prohibited, but also someone else has mastered the same technical know-how and applied for a patent. After obtaining the patent right, it will in turn restrict the enterprise that originally owned the technical know-how.
Due to the above-mentioned weaknesses in the protection method of technical know-how, this requires enterprises and individuals to fully consider whether the protection method of technical know-how or patent protection is appropriate before making a decision. Able to keep secrets. If it can be kept confidential, you should consider protecting it through technical know-how without applying for a patent. This will not only eliminate the cumbersome procedures of applying for a patent, but may also bring greater economic benefits to enterprises than applying for a patent. As we all know, the formula of American Coca-Cola drinks is protected by technical know-how. Coca-Cola has a history of more than 100 years, and its original solution formula is still confidential. Distribution stores around the world are only responsible for the final bottling, and the original solution is provided by Coca-Cola Corporation. It is said that today, no more than 10 people in the world know its formula. If the Coca-Cola Company applied for and obtained a patent for the original solution and production method, and disclosed all its secrets, then, more than a hundred years after the invention, anyone would surely be able to make Coca-Cola. Not applying for a patent for the original liquid formula, but protecting it as technical know-how, is the secret of Coca-Cola's ability to establish the world's largest beverage production and sales kingdom and dominate the market for a long time.
Therefore, if it is still impossible for others to understand the essential content of the invention-creation after it is implemented, protecting the invention-creation in the form of technical secrets is one of the desirable ways, and even Probably the best way. For example, the formulation and brewing process of Chinese herbal medicine, the smelting and heat treatment process of metal materials, and other innovative inventions. After the Chinese herbal medicine and metal products involved in these inventions and creations are put into the commercial field, others still cannot analyze the processing technology. Key points.
One thing that needs to be pointed out is that the necessary confidentiality measures must be taken to constitute a trade secret. Technology without internal registration measures is not considered a trade secret.
However, for ordinary technologies, the core technology of the invention and creation is likely to be known to others through various channels and cannot be kept confidential. In this case, technical achievements cannot be protected as technical secrets. At this time, it would be better to apply for patent protection than to protect technical secrets. The risk of applying for a patent lies in disclosing the content of the invention, which is often said to be "disclosure in exchange for protection."
The Patent Law stipulates that after an invention or creation has obtained a patent, no unit or individual may exploit the patent without the permission of the patentee, that is, the patent may not be manufactured, used or sold for production and business purposes. product, or use its patented method; after the invention patent application is published, the applicant may request the unit or individual who implemented the invention to pay appropriate fees. If the implementing unit requests the patent management agency for mediation or directly files a lawsuit in court after the patent is granted.
When deciding whether to apply for a patent or protect it as a trade secret, the applicant needs to comprehensively consider the above factors. Is it better to apply for patent protection for a company's key technologies or to protect trade secrets?
Technology that can be obtained through reverse engineering should not be protected by trade secrets, but should be protected by patent applications. For technologies that cannot be obtained through reverse engineering and other methods and have long-term confidentiality value, it is more suitable to choose the protection method of trade secrets.
To protect scientific and technological achievements, enterprises can apply for patent protection or protect them as trade secrets, but they are two completely different protection measures. Their main differences are as follows:
(1) Patents and trade secrets are generated in different ways. Patents must be applied for and authorized by the state before they can receive legal protection. For trade secrets, no application is required, let alone authorization. As long as the right holder takes confidentiality measures for its undisclosed technology, a trade secret will immediately arise.
(2) The property rights of patents and trade secrets are different in nature. A patent is a complete property right that is exclusive. Whoever applies for a patent first and gets it approved has exclusive rights to the technology. No one else may use it without the patent owner's permission. The right holder of a trade secret does not have this exclusivity, and a trade secret is not a complete property right. As long as it is not obtained through improper means, the same trade secret can be enjoyed by several right holders at the same time.
(3) Patents and trade secrets have different protection time limits. The protection of patent rights is time-limited. According to the provisions of my country's patent law, the term of invention patent rights is 20 years, and the term of utility model patent rights and design patent rights is 10 years. After the patent protection period expires, the technology is no longer protected by law. There is no time limit for the protection of trade secrets. As long as they are not leaked or disclosed by the right holder, they can always be protected by law.
(4) Patents and trade secrets are also protected in different ways. Patents provide legal protection for patented technology through technology disclosure and restricted use. Trade secrets protect proprietary technology by taking confidentiality measures and strictly controlling the scope of knowledge. Due to different methods of protection, the scope of application is also different.
If you still have questions, you can go to iluhao to ask which inventions and creations are patented and which are regarded as technical secrets
If the technical characteristics are easy to grasp through reverse engineering, it is best to apply for a patent. Such as mechanical aspects.
If it is difficult to understand the technical characteristics through reverse engineering, you can consider protecting them through technical secrets. For example, some chemical materials or formulas, specifically the formula of Coca-Cola.
For reference, how software companies deal with employee job-hopping and software technology secret protection
The loss of business technology secrets due to the flow of personnel is a very common problem in modern enterprise management. It is also a problem that makes business managers very helpless. The software industry is an intellectual industry, and the protection of intellectual trade secrets involved is particularly urgent. Employee turnover in the software industry is much greater than the average turnover rate in other industries. This problem also increases the cost and difficulty of protecting trade secrets. Because 90% of employee turnover is accompanied by the infringement of intellectual property rights or the loss of dyeing technology secrets. However, for most small and medium-sized software development companies, due to the cost of rights protection and concerns about the reluctance of software development insiders to break up, how to protect their own software intellectual property rights and how to prevent employees from infringing other people's intellectual property rights are all issues for most software development companies. A headache.
In response to employee job-hopping and software technology secret protection, there are two common types of infringement. One type is when software development technical backbones leave software companies to "set up their own businesses." This situation mostly involves infringement of the software copyright of the original unit, that is, the same software products developed and operated by the original unit. Another type is when software development technicians leave their original company and find another job to join another company in the same industry. They bring the original company's software source code, technical documents, customer database and other business secrets to the new company for use by the new company. , infringing on the original company’s trade secrets. Lawyer’s advice: The behavior of technical personnel in software development companies quitting their jobs has become the main channel for the loss of business secrets, especially software technology secrets, of software development companies. Software development companies should properly handle the relationship between protecting the normal flow of employees, labor and employment autonomy, and protecting the company's own software technology secrets and other business secrets. Therefore, enterprises should do the following two things in human resources management: 1. Software development enterprises must sign a clear confidentiality agreement with the personnel responsible for software technology development, including employees who may be exposed to the company’s software technology secrets and other business secrets. Clearly agree on the scope of the company's trade secrets and trade secret protection measures, and cooperate with the "non-compete" clauses in the labor contract. At the same time, the corresponding liability for breach of contract should also be stipulated in the confidentiality agreement signed with employees. 2. Software development companies need to implement intellectual property strategic planning based on the actual situation of the company. After many software development companies have signed a confidentiality agreement with their employees, even if the software technology development employees leave, it may involve the loss of the company's software technology secrets, but the cost of prosecution is limited, so they just let it go. And if software development companies pay attention to the accumulation and protection of intellectual property rights and formulate long-term and standardized strategic plans for intellectual property rights, they will greatly reduce various intellectual property disputes and increase corporate efficiency. Software development can establish and improve incentive mechanisms while enhancing awareness of trade secret protection.
Apply for QQ secret protection
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Just click "Apply for Password Protection" in the login box and go in! Technical secrets are permanently protected. Does it need to apply for protection from the relevant departments, or should it be kept secret within the company?
1. Those belonging to technical patents need to apply for relevant patent certificates to protect intellectual property rights; 2. R&D information and the R&D process can be directly kept confidential within the enterprise; 3. According to the labor law, Enterprises can formulate relevant confidentiality agreements, but signing the agreement is voluntary.
Please adopt it, thank you! Does the company's technology or products need to be protected by patents? What benefits can it bring?
1. Patent Law
Article 9 (China adopts a first-to-file system, and if two or more applicants apply for patents for the same invention and creation, the patent right shall be granted to the one who applies first. Person. );
22. Paragraph 2 of Article 22 of the Chinese Patent Law:
Novelty means that the invention or utility model does not belong to the prior art; nor Any unit or individual has submitted an application to the patent administration department of the State Council for the same invention or utility model before the application date, and it shall be recorded in the patent application documents or announced patent documents published after the application date.
23. Paragraph 1 of Article 23 of the Chinese Patent Law:
The design for which the patent right is granted shall not be an existing design; nor shall any unit or individual The design has been applied to the patent administration department of the State Council before the application date, and is recorded in the patent documents published after the application date.
29. (The Paris Convention establishes the principle of priority. Within twelve months from the date when the applicant first files a patent application for an invention or utility model in a foreign country, or from the first time a design is filed in a foreign country, If a patent application is filed in China on the same subject within six months of the first filing of a patent application, the foreign country shall, in accordance with the agreement signed by the foreign country and China or an international treaty to which both countries are party, or in accordance with the principle of mutual recognition of priority.
If the applicant files another patent application for the same subject with the patent administration department of the State Council within twelve months from the date of first filing a patent application for the invention or utility model in China, can enjoy the right of priority)
69 (China’s first-to-invent exemption is strictly limited and any of the following circumstances will not be considered as infringement of patent rights:
…(2) The same product has been manufactured, the same method has been used, or the necessary preparations for manufacturing and use have been made before the patent application date, and the manufacturing and use will only continue within the original scope;)
2. External competition
2 million ÷ 250 working days = 8,000 pieces/day
In China alone, 8,000 patent applications are added every day. Applying even one day late adds 8,000 potential competitive threats in the country.
With the upgrading and transformation of industries, China's market economy is moving from pure price competition to all-round competition, and the use of legal rules is an important means of competition.
In all developed countries in the world, except Japan, the number of patent applications is still growing.
The transnational war in patent litigation is intensifying, and patent barriers have become the main means for countries around the world to fight against Chinese manufacturing.
Novelty has been changed to an absolute standard. From a global perspective, if you apply for a patent one day late, the potential threat will increase from 8,000 to N times.
3. Ownership Disputes
(Internal squatting) Technical plans and design sketches are still being discussed in the morning. In the afternoon, insiders may apply for patents as personal inventions, thereby being internally Personnel as one's own.
Customers and partners are also dangerous business opponents. The technological achievements jointly developed or carefully prepared bidding plans may be secretly patented by your customers or partners at any time, thus becoming a A yoke around your neck.
Apply as soon as possible to avoid ownership disputes later
4. Novelty of the patent
1. Before submitting manuscripts at the meeting
2 , Before publishing an article
3. Before communicating with customers or friends
4. Before selling
5. When the theoretical design is basically formed Just apply
5. Preferential policies
***'s patent subsidy is usually budgeted at the beginning of the year.
Certification of high-tech enterprises, assessment of personal professional titles, etc. all have requirements for the number of patent authorizations. Applying early can ensure that authorization is obtained before the deadline for certification assessment. How to choose patent protection and trade secret protection
Patent protection means that after the patent right is granted, the invention cannot be commercially manufactured, used, offered for sale, sold or imported without the consent of the patentee. , after the patent right is infringed, the patentee protects the patent right through negotiation, requesting the intervention of the patent administrative department or litigation.
After a patent is infringed, the patentee can take three ways to protect its patent.
1. Consultation and negotiation;
2. Request the patent administrative department for mediation;
3. File a patent infringement lawsuit.
The so-called protection of trade secrets means that employees shall not use the company’s trade secrets to engage in personal profit-making activities during the labor contract and for a period of time after the labor contract is terminated or terminated, except in accordance with the provisions of the law or the company’s commitment. , shall not disclose, use or allow others to use the corporate trade secrets in their possession.
1. The first paragraph of Article 10 of the "Law of the People's Republic of China and the State Against Unfair Competition" lists three prohibitive regulations on the infringement of trade secrets; the second paragraph is about the conduct of unfair competition Interpretative norms for the definition; Article 20 is about liability for damages for infringement of trade secrets, etc.
2. Articles 42 and 43 of the "Contract Law of the People's Republic of China" regarding liability for negligence in contracting; Article 60, paragraph 2, regarding incidental obligations; Article 92 regarding provisions on post-contractual obligations; Section 2 of Chapter 18 deals with the provisions on the transfer of technology secrets in technology transfer contracts.
3. Article 24 and Article 80 of the "Company Law of the People's Republic of China" stipulate that shareholders of limited liability companies and joint stock companies may contribute capital with non-patented technologies (including technical secrets in trade secrets) ) and restrictions on the amount of non-patented technology; Article 61, paragraph 1, and Article 123, paragraph 2, regarding non-competition provisions for directors and managers of limited liability companies and joint stock companies; Article 62, Article 123, paragraph 2 Article 215 prohibits directors, supervisors, and managers from disclosing business secrets of an enterprise or company; Article 215 stipulates the civil liability and other responsibilities that directors and managers should bear if they violate non-competition.
4. Paragraph 1 of Article 5 of the "Law of the People's Republic of China on Sino-Foreign Joint Ventures" stipulates that parties to a joint venture may invest with industrial property rights (including technical secrets in trade secrets) Regulation.
5. Article 8 of the "Law of the People's Republic of China on Sino-foreign Joint Ventures" stipulates that Chinese and foreign contractors may provide industrial property rights and non-patented technologies (including technical secrets in trade secrets) as conditions for cooperation regulations.
6. Article 118 of the "General Principles of the People's Republic of China and Civil Law" stipulates the civil liability for infringement of other scientific and technological achievements (including technical secrets in trade secrets).
7. Article 33 of the "Lawyers Law of the People's Republic of China" stipulates that lawyers should keep the commercial secrets of their clients that they know during their professional activities; Article 40, Item 6 discloses the commercial secrets of the clients Administrative liability for confidentiality.
8. Paragraph 2 of Article 10 of the "Import and Export Commodity Inspection Law of the People's Republic of China" stipulates that the staff of the national commodity inspection department and commodity inspection agencies shall, in performing their duties of import and export commodity inspection, Known trade secrets are subject to the obligation to keep them confidential; Article 37 stipulates the administrative and criminal liability of staff members of national commodity inspection departments and commodity inspection agencies who violate the provisions of this law and leak known trade secrets.
10. Paragraph 1 of Article 51 of the "Science and Technology Progress Law of the People's Republic of China" stipulates that the state establishes a scientific and technological confidentiality system; Article 60 regarding illegal theft of technical secrets shall be subject to relevant provisions. The provisions of the law bear the provisions of legal liability.
11. Article 27 of the "Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements" stipulates that when a unit that has completed scientific and technological achievements cooperates with other units to transform scientific and technological achievements, it shall sign an agreement to keep commercial secrets and an intermediary. Regulations on the obligation to keep confidential business secrets that an organization learns while engaging in agency or intermediary business; Article 28 stipulates the establishment of an internal confidentiality system within the enterprise.
12. Paragraph 2 of Article 134 of the "Civil Procedure Law of the People's Republic of China" stipulates that cases involving business secrets may be heard in public if the parties apply for a closed hearing.
13. Article 22 of the "Labor Law of the People's Republic of China" stipulates that the parties in the labor contract may agree on matters related to the keeping of corporate business secrets; Article 102 concerning the violation of confidentiality matters in the labor contract , causing losses to the enterprise, shall bear the provisions of liability for damage compensation.
14. Article 219 of the "Criminal Law of the People's Republic of China" stipulates the crime of infringement of commercial secrets and the criminal liability to be borne.