Growth Enterprise Market (GEM) is a securities (stock) trading market, which mainly provides financing channels and growth space for small and medium-sized enterprises, emerging enterprises and high-tech enterprises with high growth, innovation and high-tech content, and provides a legal, effective and convenient exit mechanism for venture capital. According to Article 1 of the Interim Measures for the Administration of the Listing of Initial Public Offerings of Growth Enterprise Market (hereinafter referred to as the "IPO Measures of Growth Enterprise Market"), which was formally implemented on May 1 2009, what is the core of China's Growth Enterprise Market? Independent innovation enterprises and other growth-oriented entrepreneurial enterprises? The capital market category that provides direct financing services, here? Independent innovation enterprise? Mainly small and medium-sized enterprises with innovative intellectual property advantages. GEM is superior to the main board market in listing conditions, which can provide good and fast financing services for the development of small and medium-sized enterprises and support the rapid growth of enterprises.
What does GEM emphasize? Independent innovation? , is one of the important factors to choose whether an enterprise is suitable for listing on GEM, and the quantity and quality of patents is one of the key indicators to measure the independent innovation ability of enterprises. Article 14 of the Measures for Initial Public Offering of Growth Enterprise Market stipulates that the issuer shall have sustainable profitability; There is a risk of significant adverse changes in the acquisition or use of important assets or technologies such as trademarks, patents, proprietary technologies and franchise rights. The issuer is considered to have no sustainable profitability. In addition, the China Securities Regulatory Commission issued a document requesting a comprehensive inspection of IPO companies, including patents, trademarks and other important matters. This requirement has led many enterprises to temporarily apply for patents and purchase patents. However, these last-minute cramming practices will only get enterprises into trouble? Patent door? . Take Henan Xindaxin Materials Co., Ltd., a leading enterprise of cutting-edge materials for silicon wafers in China, as an example. Xindaxin Materials, originally scheduled to be listed on May 20, 2065438+00, suddenly announced its application for suspension of listing on May 10, and was exposed that its main business production technology was suspected of infringing on Henan Lion Dance. Special edge material for wire cutting of semiconductor materials? The unique names of national invention patents and their products. Cases like this are common in recent years, but the seemingly simple patent ownership problem can make enterprises suffer huge losses, and patent infringement has become an IPO killer.
I. Patents of listed companies on the Growth Enterprise Market The notable features of listed companies on the Growth Enterprise Market are high growth and strong independent innovation ability, and the main indicator that can reflect the innovation ability of enterprises is the number of patent applications. Therefore, most GEM companies will list their own patents in the prospectus to show their innovative ability as high-tech enterprises. However, the listed patents generally have the following problems.
1. The number of patent applications among enterprises is uneven.
From June, 2009, when the first batch of GEM stocks were listed to the end of June, 2009, a total of 153 enterprises passed the examination and approval of the administrative department of China, and they can issue shares and trade on GEM. Through the statistical analysis of the patent applications of GEM enterprises, it can be seen that the number of patent applications among enterprises is uneven, which to some extent reflects that enterprises attach different importance to patent applications. Statistics show that the patent applications of the five GEM companies account for more than 20% of the total applications, and the number of applications of the companies with the largest number of patents is as high as 259, but most enterprises still pay insufficient attention to patents.
2. The proportion of invention patents is not high, and the scientific and technological content needs to be improved.
As we all know, the invention patent examination is strict, the examination period is long, and there are many authorization conditions, so the invention patent is the most? Gold content? It is generally regarded as an important index to evaluate the innovation ability of a country or enterprise. Statistics show that among the 3360 GEM patent applications, there are 1436 invention patents, 1308 utility model patents and 6 16 design patents, accounting for 42.7%, 38.9% and 18.3% of the total patent applications of GEM enterprises respectively. In other words, the most? Gold content? The proportion of invention patents is less than half. The reason is that enterprises apply for utility model patents and design patents that are easier to be authorized in order to obtain patents as soon as possible, and give up invention patents that have long application time and strict examination and approval. On the other hand, it also reflects that the innovation ability of small and medium-sized enterprises in China is really not strong enough and there are few core technologies.
3. The time of patent application is relatively concentrated.
The companies listed on GEM have obtained fewer patents, but they are applying for more invention patents, and the application time is concentrated in 2008-2009 on the eve of listing. One of the reasons is the need for enterprises to go public. On July 26th, 2009, China Securities Regulatory Commission officially accepted the listing application of GEM enterprises. At the end of June, at 5438+00, the first batch of GEM stocks were listed and traded. When considering whether an enterprise meets the listing conditions, the CSRC will refer to the patent application of the enterprise. However, for enterprises, it usually takes at least 1 year to prepare for listing, while the preparation time for some enterprises is 2 ~ 3 years, so the application time is concentrated in 2008 ~ 2009.
4. Patent ownership
The patent ownership of listed companies is mainly manifested in the following aspects:
(1) The enterprise has applied for a patent, but the application is still under review, and the enterprise is not authorized; (2) The patent right is invalid due to the expiration of the patent term; (three) because of the transfer of the patent right, it no longer owns the patent right; (4) patent ownership is unclear due to patent infringement disputes.
Second, the research and practice of existing efficient examination methods in China National Intellectual Property Administration Patent Office? Patent door? The problem has sounded the alarm for enterprises, and developing valuable and high-gold core technologies is the correct direction for the future development of enterprises. This also puts forward double requirements for the patent examination of enterprise's core technology patents, which should not only shorten the examination period on the basis of traditional examination, but also ensure the high-quality examination of such patent applications, so as to ensure the stability of enterprise's core patents and provide a basis for enterprise's patent layout in time.
In order to meet different social needs, China National Intellectual Property Administration Patent Office (hereinafter referred to as the Patent Office) has introduced more and more patent examination methods besides the traditional examination methods, such as accelerated examination, centralized examination, priority examination and roving examination.
1. Traditional censorship system
For an invention patent, there are two stages from application to closing, namely, the preliminary examination stage and the substantive examination stage. According to the requirements of China National Intellectual Property Administration, the substantive examination period is shortened to 22 months, and the preliminary examination period is mainly determined by the publicity time. Article 34 of the Patent Law of People's Republic of China (PRC) stipulates that after receiving an application for a patent for invention, the the State Council Patent Administration Department shall publish it within 18 months from the date of application, if it considers that it conforms to the provisions of this Law after preliminary examination. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant. Among them, the substantive examination stage is mainly reviewed by an examiner.
2. Priority review
On April 20 10, the Patent Office tried out the Administrative Measures for Priority Examination of Patent Applications, which is of great significance to green technology and low-carbon technology. Green invention? Patent applications involving major scientific and technological projects? Important inventions? Priority should be given to patent applications and patent applications that need to be accelerated due to major national events such as the World Expo. The purpose is to promote the optimization, upgrading and sustainable development of China's economic and industrial structure, strengthen the effective implementation of the national intellectual property strategy, and timely examine patent applications that are of great significance or influence to the interests of the state and the public, thus contributing to the timely formation of patent layout and occupation of domestic and foreign markets. The Administrative Measures for Priority Examination of Invention Patent Applications promulgated by China National Intellectual Property Administration has also been officially implemented since August 1 2065438.
3. Roving review
On August 20 10, the Guiding Opinions on Carrying out Circuit Examination of Actual Trial was passed in the Patent Office, and the circuit examination method was established in the substantive examination stage of invention patent. The purpose of roving examination is to serve the actual needs of innovative subjects through patent examination.
4. Centralized review
In 2009, the Mechanical Invention Examination Department of the Patent Office and the Beijing Patent Examination Cooperation Center carried out pilot work, and explored the specific implementation plan of centralized examination, such as document extraction and distribution, examination quality spot check and inspection, and workload distribution of examiners. In August 2009, the Examination Business Management Department issued the Measures for Proposals for Series Applications, which stipulated that the proposals for series applications could be handled centrally. From 20 10 to 10, 754 patent applications were examined through a series of applications.
5. Patent evaluation report
In addition to the above-mentioned efficient examination mode for invention patents, the Patent Office can also search publicly authorized utility model or design patents at the request of the patentee or interested party, analyze and evaluate whether the patent meets the authorization conditions stipulated in the Patent Law and its detailed rules for implementation, and make a patent evaluation report. Patent evaluation report is not an administrative decision, but a form of evidence or certification document. When trying and handling patent infringement disputes, the people's court or the administrative department for patent affairs may decide whether it is necessary to suspend relevant procedures. Program aborted? Affairs, the need to submit a patent evaluation report.
3. Some Suggestions on Patent Application of Listed Companies on Growth Enterprise Market Through the brief introduction and analysis of the patent problems of listed companies on Growth Enterprise Market, it can be seen that the awareness of intellectual property rights of most enterprises is still relatively weak, and how to obtain stable patent rights quickly is a headache for every enterprise. On the basis of the existing review mode and resources, the author tries to put forward some suggestions on the patent application of listed companies on GEM from the following aspects.
1. Submit an electronic application
Electronic application is a patent application transmitted through the Internet and submitted in the form of electronic file, which greatly facilitates the applicant to submit a patent application, improves the efficiency of patent examination and approval, and promotes the construction of e-government. Submitting an electronic patent application can make the applicant communicate with the examiner quickly and complete the examination and approval process as soon as possible.
2. Evaluation report of utility model patent right
An applicant may apply for a patent for utility model for the same product while applying for a patent for invention. Due to the rapid authorization of utility model patents, after authorization, the applicant may request a patent evaluation report for the authorized utility model. In this way, the applicant can get a patent evaluation report very quickly, which is much faster than the substantive examination process of the invention patent. At the same time, based on the comparative documents given by examiners and the patentability analysis of utility model claims, combined with the enterprise's own patent strategic planning, we can make a preliminary judgment on the authorization prospect of invention patents, the research and development direction of enterprises and the patent layout.
3. Apply for PCT international application
For the PCT international application of core technology, the applicant can obtain the international search made by the acceptance bureau for preliminary search, and can also obtain the preliminary patent analysis in advance, which is beneficial for the applicant to make a pre-judgment on the development direction of the enterprise. If the core technology after retrieval is at the international leading level, the applicant can also apply for PCT to enter a number of designated countries in order to seize the patent rights of these designated countries and become one of the weapons for enterprises to go abroad.
4. Use PPH to speed up the review service
Patent progress highway (PPH for short) means that when the first patent OFFice (OFF) decides whether the claim of an application can be approved or authorized, the applicant can request the second patent office (OSF) to speed up the examination of the corresponding application, and OSF can use off to retrieve and examine the results. In this way, the applicant can obtain overseas patent authorization more conveniently, and the search and examination results can also be used among the bureaus. This can greatly speed up the patent examination process of foreign patent applications, and the applicant can obtain foreign authorization and seize the patent right as soon as possible.
The above suggestions are based on the existing review mode and review resources. An emergency? Measures, but in the long run, listed companies basically need to pay attention to technological innovation and R&D, establish their own intellectual property mechanism, and build different types of three-dimensional patent layout combining upstream and downstream according to the product situation of enterprises.
Four. The Patent Office's policy recommendations for the patent examination of core technologies of listed enterprises are as mentioned above. At present, more and more independent and innovative enterprises are trying to list on the Growth Enterprise Market for better development, and the preliminary work must include patent applications for their core technologies. Although there are more and more patent examination methods in patent offices, there is no patent examination specifically for the core technologies of independent innovation enterprises. In view of this, the author believes that the patent office should adopt a more clear and positive policy orientation for patent examination of core technologies of independent innovation enterprises. Specifically, in order to indirectly help enterprises to meet the requirements of listing on GEM as soon as possible, the Patent Office should formulate a completely open system of accelerated examination and priority examination of core technology applications of independent innovation enterprises, and give certain policy inclination from the aspects of patent application disclosure and examination. More specifically, the author tries to give policy suggestions from the following aspects.
1. patent application
For the core technology patent application submitted by independent innovation enterprises to the Patent Office, it is suggested that the applicant should not only submit the documents required for general patent examination, but also indicate that it is a core patent application in the written application, and ask the applicant to provide relevant technical materials or evidence to help the examiner understand the technical scheme quickly and accurately in the subsequent substantive examination. After the applicant submits the above statements and supporting materials, his application will automatically enter the gradual review mode of combining substantive review before disclosure and accelerated review after disclosure.
2. Substantive review before disclosure
The substantive examination before publication refers to that when the applicant makes a request for substantive examination of an application for a patent for invention, he specifically requests that the substantive examination procedure can be started before the publication of the application for a patent for invention. According to his request, the Patent Office will start the substantive examination procedure, and start some substantive examination work when the preliminary examination is over and waiting for publication, such as giving a search report, which lists the closest existing technology to this application. On the basis of the existing technology, it gives a preliminary judgment on whether the application has the prospect of authorization, which is similar to the patent evaluation report of utility model or design in content. Its main purpose is to provide reference for enterprises to develop their own core technologies and provide certain basis for the future patent layout of enterprises, so as to gain the upper hand in the patent battlefield for enterprises.
Of course, it is necessary to make a full judgment on the disclosure of the contents related to the application date in the substantive examination after the application is made public, such as the disclosure of the instructions related to the cited documents.
3. Accelerate the audit after publicity.
(1) speeding up the review shortened the review cycle, and the first case was closed within 12 months after the examiner put forward it. This review mode not only improves the review efficiency, but also takes into account the adequacy of communication and the applicant's right to choose. The retrieval report made in the substantive examination before publication also provides reference for the examiner who is accelerating the examination. At the same time, in order to better complete the accelerated review, the applicant needs to cooperate, such as submitting an electronic application, replying to the notice of review opinions within 1 month, submitting the review process of the same application, submitting the revision control page when revising, indicating the source and explaining the reasons for not exceeding the scope, and submitting more than two existing technologies when applying for actual review.
(2) In order to enable enterprises to obtain stable patent rights in the future, the author suggests to establish a three-person review team in the process of accelerating the review, which is different from the single-person review system of ordinary patent substantive examination. Because patent examination is a very subjective process, an examiner is responsible for the examination of a case, and the examination opinions are inevitably too subjective, and there may be incomplete strategies, wrong ideas and wrong understanding of the invention. In the process of retrieval, the retrieval result is incomplete or wrong; When writing a notice, different examiners will have great differences in creative judgment and common sense application, and the examiner's subjective and personal factors have great influence.
Similar to the three-person collegiate panel of the Patent Reexamination Board, the three-person collegiate panel should include the group leader, the chief examiner and the examiners who participated in the trial. Among them, the team leader is mainly responsible for reviewing the results of the case and grasping the overall trend of the case; The chief examiner is mainly responsible for the review of the case, including the necessary retrieval and the writing of the notice, as well as the analysis of the public review opinions (see the next section for details); Examiners who take the exam take part in the exam, assist the team leader and the examiner in their work, and collect public opinions regularly. This can effectively reduce future patent infringement disputes and other issues, thus reducing? Patent door? The occurrence of events.
4 independent innovation enterprise patent public review
In addition to the above-mentioned progressive examination method combining substantive examination before publication and accelerated examination after publication, the author thinks that the patent application of independent innovation enterprises can be publicly examined at the same time of accelerated examination after publication, and the two can be carried out in parallel. Public examination includes collecting the public's views or opinions on the enterprise's invention patent application, and providing the opinions of public examination to the substantive examination team for reference in time. Can public censorship be established on China National Intellectual Property Administration's website? Open patent examination of independent innovation enterprises? In the form of a network platform. The contents of the review may include the quality of the patent application for the core technology, whether it is novel and creative, and provide comparative documents that affect the novelty and creativity of the patent application. The patent office regularly analyzes and summarizes the opinions and suggestions put forward by the public, and then inputs them into the application folder in the electronic examination and approval system for the reference of substantive examiners.
At present, more and more enterprises stop IPO because of patent problems and miss financing opportunities. As an important patent system to encourage innovation and promote innovation and application, the patent examination system of the patent office should respond to this. It is an inevitable choice to establish a systematic, accurate, efficient and stable patent application examination mechanism and mode for independent innovation enterprises, greatly shorten the examination period and ensure the high quality of patent examination, which will lead the development of GEM enterprises and even lead the economic development of China to a certain extent. The author's tentative research on the review of such applications is still immature, and there are even some incorrect places. I hope readers will criticize and correct me.
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