In recent years, the digital audio and video industry has developed rapidly. Patent applications and authorizations are active, there are many rights holders, and the subordination relationships between a large number of patented technologies included in technical standards are complex. Therefore, the risk of patent infringement is very high. At present, most Chinese companies' analysis of standard-related patents mainly focuses on the essential patents involved in the standard itself. However, the technical solutions of non-essential patents in technical standards are not necessarily unimportant technologies. We should actively prevent and be vigilant about non-essential patents in technical standards. Essential patents are still very important to enterprises.
The AVS working group is the abbreviation of the China Digital Audio and Video Coding and Decoding Technology Standards Working Group. The series of standards drafted and formulated by the AVS working group and approved and implemented by the standardization authority are referred to as the AVS standards. At the beginning of the formulation of the AVS standard, experience and lessons learned in the field of domestic and foreign standards and intellectual property rights were carefully analyzed. The working group conducted an in-depth investigation and analysis of the intellectual property status of the technologies included in the AVS standard in 2004, and believed that "public technologies, independent patent technologies and technologies willing to join the 'AVS Patent Pool' constitute a complete AVS technology solution. The AVS standard The risk of infringement of other patents is extremely small. ”
So, assuming that a company is developing or producing a video codec based on the AVS standard, the company has obtained authorization from the AVS patent pool and paid. If the patent fee is paid, will the company's product not be at risk of patent infringement?
In order to answer this question, let's first analyze the AVS standard intellectual property policy.
Intellectual property policy related to AVS standard
"Digital Audio and Video Codec Technology Standard Working Group Intellectual Property Policy" in 2004 It was adopted and implemented at the 10th working meeting on September 12, 2008, and revised at the 24th working meeting on March 29, 2008. Its Articles 23 and 24 state: “In order to facilitate the industry’s adoption of AVS technical standards, the working group supports the establishment of the AVS patent pool. Third-party patent holders with essential claims confirmed through independent evaluation can join. The AVS patent pool participates in the distribution of package licenses and patent licensing fees. "The management of the AVS patent pool should adopt a 'one-stop' licensing approach..." Regarding "essential claims", Article 4, Paragraph 2 states: "'Essential claims' refer to those parts of the patent that are unavoidably infringed by the conforming part of the final AVS standard according to the laws of the country where the patent is granted or published. of a claim, and only to that claim...Essential claims are not included, and the license does not apply...(3) as may be necessary to manufacture or use any product, service, or part thereof that conforms to the final AVS standard document , but the implementation technology is not explicitly described in the standard document. ”
It can be seen that if a certain claim of a patent is applicable to the manufacture or use of any products, services and other products that comply with the final AVS standard document. Partially necessary, but not explicitly described in the AVS standard, the claim is not a necessary claim for AVS.
Essential patents and non-essential patents
The AVS Patent Pool Management Organization is a non-profit organization registered in China. Its mission is Organize the necessary patents required to implement the AVS standard into the AVS patent pool and conduct "one-stop" licensing. In March this year, the AVS Patent Pool Management Center started the call for essential patents for the AVS-P2 standard. The call period was from March 1 to April 1, 2008. It can be seen that the AVS patent pool management organization convenes, identifies and licenses only the essential patents of the AVS standard, which are necessary for those products that comply with the AVS standard documents, and there are no patents clearly specified in the AVS standard. The AVS patent pool management The Agency assumes no responsibility for identifying and licensing these patents.
The author does not know how the AVS patent pool management organization identifies essential patents.
However, judging from the practices of some major international standardization organizations, the establishment of a patent pool should follow the "minimum principle", and "essential patents" should at least meet the requirements of validity and irreplaceability. Judging from the "Essential Patent and Standard Cross-Reference Chart" and "Essential Patent Claims and Standard Text Comparison Table" made by foreign institutions on the MPEG-2/4 standard, H264/AVC standard, etc., the analysis of the necessity of patents mainly focuses on obtaining patents. The claims are compared with the standard text. Only if there is at least one claim covered by the standard text can the relevant patent be counted as an essential patent.
According to this evaluation method, the technical solutions in essential patents are indispensable in technical standards, and essential patents are generally applied for or authorized before the standard text is released, and thereafter the relevant companies Patent deployment may mostly revolve around non-essential patents.
The technical solutions of non-essential patents in technical standards are not necessarily unimportant technologies. Some non-essential patents may become mainstream technologies in the industry and play a key role in market competition. Therefore, it is still very important for relevant enterprises to actively prevent and be vigilant about non-essential patents in technical standards.
Examples of non-essential patents in the AVS standard
After search and analysis, it can be found that after the release of the AVS standard, relevant countries Companies still file a large number of non-essential patent applications. Such patents may be the (best) embodiment of a certain technical specification specified in the AVS standard, or a fast algorithm, etc. Although these patents are not essential patents for the AVS standard, products that comply with the AVS standard may fall within the scope of protection of these patents. There are a large number of such patents (applications), which may be distributed in various modules in the field of digital audio and video coding technology. For relevant companies, such patents still pose a great threat and need to be investigated. The following is explained through two specific patents (applications).
Example 1
In October 2005, Nokia of Finland applied for a patent titled "Reference Image Management in Video Coding". The application number is CN200580040403.8. The patent was published on October 31, 2007, and the publication number is CN101065780. Claim 1 of this patent is as follows.
A method of encoding a sequence of images. The method includes using one or more images as reference images: marking the reference images with a first parameter; signaling the first parameter to a decoder; and using reference image management. wherein the reference image is identified by a second parameter derived based on the first parameter.
The characteristics of the technical solution described in claim 1 of the patent can be summarized as follows.
A. Use one or more images as reference images;
B. Use the first parameter to mark the reference image;
C. The first parameter is sent to the decoder as a signal;
D. Use reference image management;
E. The reference image is derived from the first parameter based on the first parameter. Two parameters to identify.
The technical solution adopted by the AVS video standard text in "9.4.3 Reference Image Selection" is "The reference images used for each frame of image should not exceed two, and they should be the most recently decoded I frame or P Frame. The reference index value is used to determine the reference image used for decoding the current image... The reference index value increases as the distance (display order) between the reference image and the current image increases..."
Standard "The number of reference images used for each frame of image should not exceed two" stated in "should not exceed two" is consistent with feature A of the above-mentioned patent. From "the reference index value is used to determine the reference image used for decoding the current image". It can be seen that the "reference index value" is equivalent to the "second parameter" in the patent.
"The reference index value increases as the distance (display order) between the reference image and the current image increases." It can be considered that the "distance between the reference image and the current image" is equivalent to the "first parameter" in this patent (application). Therefore, the AVS standard is consistent with features B and E of this patent. The AVS standard uses "reference image management" and therefore also conforms to feature D.
Regarding the feature of the above-mentioned patent "C, sending the first parameter as a signal to the decoder", there is no clear provision in the AVS standard text.
In summary, the AVS standard meets the technical features A, B, D, and E of the patent, but there is no clear provision for technical feature C. Therefore, the patent is a non-essential patent of the AVS standard.
Example 2
In December 2005, ST Microelectronics, a joint venture between Italy and France, applied for a project called "for rapid execution of sub-pixel in-process "Insertion method and system" patent, the patent application number is CN200510121765.1. The patent was published on September 20, 2006, and the publication number is CN1835585. Claim 1 of this patent is as follows.
A method comprising: receiving video information containing full pixels: performing sub-pixel interpolation to generate half pixels and 1/4 pixels in parallel, wherein a plurality of half pixels and a plurality of 1/4 pixels Generated simultaneously during sub-pixel interpolation; and using at least some of half pixels and quarter pixels to perform motion compensation.
This patent involves "sub-pixel interpolation" technology in video coding. It is a specific implementation method of sub-pixel interpolation, or it can be called a fast algorithm. The technical features of claim 1 can be summarized as follows.
A. Accept video information containing full pixels;
B. Perform sub-pixel interpolation to generate half-pixels and 1/4 pixels in parallel, in which multiple half-pixels and multiple Two quarter pixels are generated simultaneously during sub-pixel interpolation;
C. Use at least some of the half pixels and 1/4 pixels to perform motion compensation.
For technical characteristics A and C, the AVS standard is consistent. For technical feature B, the patent states that “multiple half pixels and multiple 1/4 pixels are generated simultaneously during sub-pixel interpolation.” However, the AVS standard text does not specify whether half pixels and 1/4 pixels are generated simultaneously. .
In summary, the AVS standard meets the technical features A and C of the patent, but there is no clear provision for technical feature B. Therefore, the patent is a non-essential patent of the AVS standard.
Analysis of two examples
The above two patents are non-essential patents for the AVS standard, and they have not been applied for since. In terms of time, its application dates are all after the release of the AVS standard. These two patents respectively involve the "reference frame selection" and "sub-pixel interpolation" technology modules in the AVS standard. For other technology modules, similar patents are likely to exist. It is not difficult to imagine that the patent deployment of relevant companies has been carried out around the non-essential patents of the AVS standard.
Therefore, for relevant companies, when determining whether a product has the risk of patent infringement, it is not enough to just analyze the essential patents involved in the standard itself, because the standard is only some framework regulations, specific During product implementation, some standard non-essential patents will also be involved. These patents will also pose a threat to related companies, and due to their concealment, the threat may be greater.
Of course, the above two patents are still in the public or trial stage, and it is still unknown whether they can be authorized. However, for relevant companies, by making early preparations and searching and analyzing relevant patents, they can respond well even if a patent infringement lawsuit is filed. Moreover, some speculative patent holders will not jump out and say that your product infringes on their patent when you are in the early stages of developing or producing a product. When your product is launched on a large scale, these hidden patent holders will jump out to assert their rights.
And because your product design contains its patented technology, these patentees will be in a very advantageous position during negotiations. If a company has discovered these patents that can cause trouble during the product development stage, it can formulate response strategies as early as possible. Preventing problems before they happen and solving small problems before they become big ones is a way to save time and effort.
Countermeasures
The author believes that the problems discovered during the search and analysis process may cause trouble to the relevant companies. Standard non-essential patents can at least have the following coping strategies.
For patents that have not yet been authorized, examine whether they meet the conditions for granting a patent. For troublesome patents retrieved, if after analysis it is found that they do not possess novelty or inventiveness, for example, the scope of their claims is too broad and has already covered the existing technology, or a prophet who has the same technical solution as the patent has been found. technology/patent, then the patent may not be authorized and the company can use it with confidence. If the prophetic technology/patent is relatively hidden and may not be easily discovered by the patent examiner, the discovered prophetic technology/patent can be submitted to the patent examination agency so that the patent cannot be authorized. Doing so is much easier than invalidating the patent after it has been authorized, and it also eliminates the risk of patent infringement on product launches in advance and eliminates worries.
Adopt avoidance design solutions. For troublesome patents retrieved, if no strong evidence is found to destroy the novelty and inventiveness of the patent, you can analyze whether the technical features of the patent are irreplaceable, that is, consider adopting a circumvention design. That is to say, for certain technical features in the patent, whether it is possible to choose alternative technologies to obtain equivalent technical performance without infringing the patent rights. If a company fails to search and analyze relevant patents when designing products, it is very likely that the technical features of the patent will be used unintentionally, which may lead to patent infringement.
In Example 1, the key point that the patent is not an essential patent for the AVS standard is "sending the first parameter as a signal to the decoder." If a product designed to comply with the AVS standard sends the first parameter as a signal to the decoder, it is likely to fall within the scope of protection of this patent. If the second parameter is passed to the decoder, the patent can be successfully avoided. In Example 2, the key point that the patent is not an AVS standard essential patent is that "multiple half pixels and multiple 1/4 pixels are generated simultaneously during sub-pixel interpolation", which is essentially a fast algorithm for realizing sub-pixel interpolation. . If the product performs sub-pixel interpolation, half a pixel and a quarter pixel are not generated at the same time during sub-pixel interpolation, that is to say, some of the technical features and corresponding performance of the patent are omitted, the patent can be avoided. . Of course, how to adopt avoidance design requires comprehensive consideration of all aspects of the situation to choose an avoidance design solution that is most beneficial to the enterprise.
Although companies can also use other methods to avoid infringement, such as invalidating the patent, obtaining patent licenses through negotiation, etc., if the patent is an authorized patent, then invalidating it or The time and expense wasted in negotiations and litigation to obtain a patent license are enormous. For a company, how to obtain higher profits is its goal. Therefore, it is an effective and economical way to plan ahead and avoid technologies that may have patent issues during the product development and production process without affecting product performance and company interests, and choose an alternative with equivalent technical effects. method.
Obtain permission through negotiation. If the patent has been authorized and you cannot invalidate it, or if the patent has not been authorized yet but after analysis it is found that it meets the conditions for being granted a patent, your product falls within the scope of protection of the patent and is not A suitable circumvention design solution, then, requires preparation for litigation or obtaining a patent license at the lowest possible price.
Since more patents are licensed and patent disputes are more often resolved through reconciliation rather than litigation, if you do enough work in advance, you can be more targeted when negotiating patent licenses and obtain relatively low licensing fees for your company.
Actively carry out patent deployment and change from passive to active. During the standard-setting process and after the standard is released, the competitive strategies of the relevant companies as patentees may be different. In the standard-setting process, most companies hope that the standard-setting organization will accept their own technical proposals as much as possible. Once their patented technology enters the standard patent pool and becomes an essential patent for the standard, companies can obtain huge benefits through the implementation of technical standards, including patent licensing. fees and market control, etc. When the standard text is released, the patent deployment of relevant companies may be more centered around the non-essential patents of the standard. For powerful enterprises, if they can proactively prevent the risk of patent infringement and can purposefully deploy patents for non-essential patents of the AVS standard, they can change from passive to active.
Standard non-essential patents still have their analytical value, especially in areas such as audio and video coding where patents are abundant. Before an enterprise develops, produces and sells a product that meets relevant standards, it needs to search and analyze patents in related fields. Patent search and analysis work should not be limited to essential patents involved in the standard itself. We should also actively guard against and be vigilant about non-essential patents in the standard.