-and the role of inventors in high-quality patent applications.
abstract:
This paper points out that the abnormal application discussed by the industry is more serious, more common and more practical. In fact, it is also a low-quality patent application with abnormal application. And try to put forward some methods to solve this problem, that is, let the inventor change from "I want to apply" to "I want to apply". Because only the inventor takes the initiative and thinks that patent application is mainly his own business, not just the business of the unit and the boss, can he spend a lot of thoughts on it. Only when any application scheme is put forward, will we take the time to investigate and study how the existing technology is generally done. Only when communicating with patent agents on technical solutions will they be afraid that patent agents will have no time, not afraid of wasting their own time.
Key words:
Abnormal application, high-quality patent application, I want to apply, I want to apply, incentive compatibility
Since this year, especially since 065438+1October 27th and March 1 1 in China National Intellectual Property Administration, in less than two months, the Notice on Further Strictly Standardizing the Behavior of Patent Application and the Measures on Standardizing the Behavior of Patent Application have been issued one after another. Obviously, abnormal application and combating abnormal application have become related to intellectual property rights.
Patents without exclusive protection function include not only those patent applications that are not intended to protect innovation from the beginning of the application, but also those patent applications that are considered to protect innovation, but ultimately have no exclusive protection value. Moreover, the proportion of such low-quality patent applications in abnormal patent applications may even be much higher than those that are more obvious or intentional.
I don't want to talk about those deliberate abnormal applications here, because that situation may be the applicant's policy arbitrage and has its own logical system. However, it is only a special product under a special period and policy. With the passage of time and policy changes, these specialties will naturally disappear, and it is not enough to suffer losses. What I want to focus on here is how applicants should avoid abnormal applications. In other words, how to avoid making one's own patent application an abnormal application with essentially low quality, or how to realize a high-quality patent application.
In fact, in the Notice and the Measures, except for abnormal applications, the word with the highest frequency is "high-quality patent applications". But in view of the fact that the industry is often keen to talk about "high-value patents", I think it is necessary to distinguish between "high-value patents" and "high-quality patent applications" first.
First of all, patent right is essentially an exclusive right and a prohibition right. Therefore, the patent right that can't be monopolized or prohibited in essence is a kind of worthless patent right in essence.
Or some people say that exclusivity is only the legal value and market value of patent right. Does patent have its technical value as a technical document? I think the person who said this first confused the difference between patent rights and patent documents, because even if patent documents have some intrinsic value, they may not necessarily draw the conclusion that patent rights are valuable. Secondly, if the inventor publishes a related paper with more detailed technical content at the same time or after applying for a patent, then the value of the patent document as a technical document is gone, not to mention the technical value of the patent right.
Therefore, the basic premise of the establishment of "high-value patent" should be that the writing of patent application documents is qualified. Without this basic premise, it is meaningless to talk about high-value patent. Therefore, "high-quality patent application" is a necessary condition for "high-value patent right" to some extent, but it is not a sufficient and necessary condition. In other words, a patent obtained through a "high-quality patent application" does not necessarily have a "high-value patent right", and a patent with a "high-value patent right" is not necessarily a "high-quality patent application". The two can only be said to be closely related, just as the so-called "successful people" have a strong correlation with their personal Excellence and efforts, but it is not inevitable.
Although "high-value patent right" is inevitable, for "high-quality patent application", as long as the applicant can understand the basic logic of patent protection, find a qualified patent agency and let the inventor actively cooperate with the patent agent, it is entirely possible to complete a high-quality patent application in the end, which is also the proper meaning of the agency service of the patent agency after obtaining reasonable consideration.
But in reality, it is often difficult for many applicants to obtain high-quality patent applications. There are many reasons for this situation, including the applicant's unwillingness to pay the appropriate price for his patent application, and it is obviously unrealistic to get a copy of 10 thousand yuan with an agency fee of 2000 yuan. Of course, it also includes the applicant's own misunderstanding of the logic of patent protection, thinking that the purpose of patent protection can be achieved as long as the authorization certificate is obtained. So I don't care about the quality of the patent right, and I don't even know how to care about or judge the value of the patent right.
But among all these reasons, the most important one is that the inventor has no will and motivation to cooperate with the patent agent to complete a high-quality patent application (the patent application mentioned in this paper mainly refers to the application of the unit applicant).
As a patent agent, the author often encounters the situation that the inventor plays dumb. They seem to be saying in their hearts that it is to apply for a patent. What are you more serious about? But once the inventor doesn't want to be serious, once he plays dumb, he wants to fool things. Even if the applicant is lucky enough to get a patent, 80% is the kind of junk patent that is patented for the sake of patent.
Give me an example of my own experience. In a case I represented, I asked the inventor what the existing technology should do to solve a core technical problem of the invention. He told me that he didn't know either. I said that judging from common sense, someone is doing it in reality. Therefore, there must be more than one method in the existing technology, so we must first understand how the existing technology is done, so that we can know where our technical solutions are different. The practice of existing technology is the frame of reference for the technical scheme we want to apply for protection. Without a clear frame of reference, talking about movement, increment and change is nonsense and hooliganism. But after searching for a long time on the Internet and asking some people, my inventor told me that no one in the prior art did this.
what can I say? The best I can do is to use my common sense to make some novelty searches, but after all, I am not a technician in this field, and generally I can know no more than the inventor. Therefore, even if I finish the novelty retrieval, it is difficult for me to get any better results. Therefore, the final application documents can only be written according to the inventor's statement that there is no relevant technical scheme in the prior art. It is easy to write like this, but it will be more difficult to authorize the application documents written like this, not to mention the quality of the patent right after authorization.
In essence, this low-quality patent application is a patent for the sake of patent, not an abnormal application to protect innovation, even though there may be innovative technical contributions in the technical scheme. And at this time, the applicant will definitely be greatly dissatisfied with his application being evaluated as an abnormal application, shouting grievances, but in fact, this patent application is actually a low-quality abnormal application in my opinion.
The terrible thing is that the quality of most patent applications in China is probably so low. Some notable features of this low-quality patent application are that the applicant thinks that he is applying for a normal and high-quality patent, while the inventor is actually just dealing with errands or fulfilling indicators. The result of the inventor's inattention is that the logic of technical disclosure writing is confusing and he is unwilling to spend time in-depth communication with patent agents. In this way, it is often difficult for patent agents to thoroughly understand the technical scheme when writing application documents, let alone grasp and refine the essence and essence of the invention idea. However, if the claims in the application documents can't accurately define the essence and essence of the inventive concept and only stay in the appearance and form of the technical scheme, then even if such claims are authorized by luck, they are usually invalid when they really want to exercise their rights in the end.
Moreover, if the inventor is very careless, it is almost impossible for him to spend a lot of time fully investigating and studying the relevant existing technology. However, if the inventor doesn't know how the existing technology of his technical scheme is generally done, then this kind of patent application is actually very ridiculous and funny.
Imagine that there are solutions to related problems in the prior art, but in order to cope with errands or achieve targets, inventors have to rely on their "smart" brains to come up with solutions to this problem, and also call them their own invention ideas and apply for patents. Isn't this ridiculous, sad and deplorable?
Moreover, there may be a more tragic situation, that is, the applicant invested a lot of scientific research funds to let a bunch of technicians complete a technical research, and finally solved some related technical problems and applied for a patent with confidence. Moreover, we may think that we have actually solved some technical problems and completed some inventions. Of course, we can apply for patents on related technical solutions. But the problem is that before solving the technical problems, they may not have conducted a comprehensive search of the existing technology, but what they actually accomplished is just an unnecessary "reinventing the wheel" move. It is obviously impossible to apply for a patent for a wheel that already exists in the prior art and is re-invented by itself. The most typical thing is that an inventor once asked me, isn't the invention we have completed called invention? I am speechless.
In the final analysis, there is only one problem, that is, inventors may not be interested in patent applications, especially high-quality patent applications. Because the inventor, given a salary, only needs to make the boss happy, as long as he completes the errands and goals. He has no reason and no intention to waste time on the patent application to be serious with the patent agent, and this is only if the patent agent is willing to be serious. In fact, if the patent agent only receives a low-priced case, he hopes that the inventor will not be serious with him. He hopes to fool the other party, quickly complete the writing of the application documents and submit them quickly. And can the low-quality patent application completed in this way be a junk patent? And even if China National Intellectual Property Administration doesn't judge this patent as an abnormal application, it is obviously an out-and-out and down-to-earth abnormal application. Moreover, it should be an abnormal application that the applicant, the State Information Bureau, the whole society and the whole country should strive to prevent and avoid. In contrast, those abnormal applications for policy dividends are dwarfed by such a broader and larger proportion of abnormal applications.
Therefore, the author thinks that China National Intellectual Property Administration should pay more attention to the low-quality patent applications that are common consciously or unconsciously while eliminating the abnormal application of policy dividends caused by patent subsidy policy. Only by improving this ubiquitous low-quality patent application can we finally realize the beautiful wish of comprehensive high-quality patent application. Otherwise, if we only focus on the abnormal application of policy dividends caused by past policies, and ignore this broader and more substantial "abnormal application", that is, the low-quality patent application that widely exists among unit applicants, then it may take a long way to achieve high-quality patent applications. Not to mention the number of high-quality patent applications for 10,000 people during the Tenth Five-Year Plan period, it is difficult to achieve comprehensive and extensive high-quality patent applications even in the two five-year plans.
In my opinion, there is actually only one point, that is, changing the inventor from "I want to apply" to "I want to apply". Only when the inventor is active and thinks that patent application is more his own business, not just the business of the unit and the boss, can he spend a lot of thoughts on it. Only when any application scheme is put forward, will we take the time to investigate and study how the existing technology is generally done. Only when communicating with patent agents on technical solutions will they be afraid that patent agents will have no time, not afraid of wasting their own time. Behind this must be the proper distribution of the inventor's interests, or the incentive compatibility between the unit applicant and the job inventor. Or let the inventor or inventor team directly lead the patent application, operation and transfer, and the unit only plays the role of platform integration, mainly retaining the nominal holding right and actual use right of the patent right. Of course, the related expenses of patent application and maintenance should be mainly paid by the unit, and the inventor or inventor team can also bear part of it according to their agreement with the unit. This may also be the fundamental reason for the effectiveness of the Baidu Act in the United States, and the fundamental reason for the failure of various China versions of the Baidu Act is that the main position of the inventor or inventor team in patent application and operation has not been highlighted, that is, the inventor has not fundamentally changed from "I want to apply" to "I want to apply".
Moreover, in my opinion, the service inventor and the unit applicant should at least rely on the win-win relationship of the unit platform in technology research and development and patent application, rather than the business employment relationship of getting a penny. If the unit applicant is unwilling to give profits to the service inventor, the service inventor is unwilling to spend time and energy to cooperate with the patent agency to complete the high-quality patent application, and it is difficult for the unit applicant to obtain a truly useful high-value patent right. In the end, it will only form a lose-lose situation for the job inventor and the unit applicant, and it is difficult to have a win-win situation.
The above is the author's rough idea on how to avoid abnormal application. It may be difficult, but in terms of its practical significance, it cannot be ignored. Not only the applicant level, but also the national level can not be ignored. Because this is related to the immediate interests of the applicant, it is a passport and challenge to the country to fundamentally and comprehensively improve the quality of patent applications. And those abnormal applications for policy dividends are just appetizers of what should be done at the national level, compared with this real adoption and challenge.