AVS Working Group is the abbreviation of China Digital Audio and Video Coding and Decoding Technical Standard Working Group. A series of standards drafted by AVS working group and approved by standardization bodies are called AVS standards. At the beginning of the formulation of AVS standards, the experience and lessons in the field of standards and intellectual property at home and abroad were carefully analyzed. In 2004, the working group conducted an in-depth investigation and analysis on the intellectual property rights of technologies included in the AVS standard, and came to the conclusion that "open technologies, proprietary technologies and technologies willing to join the AVS patent pool constitute a complete AVS technical scheme, and the risk that the AVS standard infringes other patents is minimal."
So, suppose a company is developing or producing a video codec based on AVS standard, and the company has been authorized by AVS patent pool and paid the patent fee, then this product of the company will not be at risk of patent infringement?
In order to answer this question, let's first analyze the intellectual property policy of AVS standard.
Intellectual property policy related to AVS standard
The Intellectual Property Policy of the Working Group on Digital Audio and Video Coding and Decoding Technical Standards was adopted and implemented at the 10 working meeting on September 2004 and revised at the 24th working meeting on March 29, 2008. Articles 23 and 24 point out: "In order to promote the adoption of AVS technical standards in the industry, the working group supports the establishment of AVS patent pool. Third-party patentees confirmed as necessary claims through independent evaluation can join the AVS patent pool and participate in the distribution of packaging license and patent license fees. " "AVS patent pool management should adopt a' one-stop' licensing model ...". Regarding the "essential claim", the second paragraph of Article 4 states: "the" essential claim "refers to the claim that the patent is inevitably infringed by the conforming part of the final AVS standard according to the laws of the country where the patent is authorized or published, and is limited to this claim ... the basic statement is not included, and the license is not applicable to ... (3) manufacturing or using any product, service or its components that conform to the final AVS standard document.
It can be seen that if a patent claim is necessary to manufacture or use any product, service and its parts that meet the final AVS standard documents, but it is not clearly described in the AVS standard, then the claim is not a necessary claim of AVS.
Necessary patents and unnecessary patents
AVS patent pool management organization is a non-profit organization registered in China. Its task is to organize the necessary patents needed to implement AVS standard into AVS patent pool and carry out "one-stop" licensing. In March this year, AVS Patent Pool Management Center has started to convene AVS-P2 standard essential patents from March 1 day to April 1 day, 2008. It can be seen that the AVS patent pool management organization only calls, identifies and licenses the necessary patents of AVS standard, which is necessary for those products that meet the AVS standard documents. However, there are no patents clearly specified in AVS standard, and the AVS patent pool management organization does not assume the responsibility of identifying and licensing these patents.
I don't know how AVS patent pool management agencies identify necessary patents. However, from the practice of some major international standardization organizations, the establishment of patent pool should follow the "minimum principle" and "essential patents" should at least meet the requirements of effectiveness and irreplaceable. From the comparison table of basic patents and standards, and the comparison table of basic patent claims and standard texts made by foreign institutions on MPEG-2/4 and H264/AVC standards, the necessity analysis of patents is mainly to compare patent claims and standard texts. Only when the standard text covers at least one claim can the relevant patent be counted as a necessary patent.
According to this evaluation method, what is essential in technical standards is the technical scheme of essential patents, which are generally applied for or authorized before the publication of the standard text, and then the patent deployment of related companies may mostly focus on unnecessary patents.
Technical solutions of unnecessary patents in technical standards are not necessarily unimportant technologies, and some unnecessary 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 guard against unnecessary patents in technical standards.
Examples of unnecessary patents in AVS standard
After retrieval and analysis, it can be found that after the release of AVS standard, related enterprises in various countries still submitted a large number of unnecessary patent applications. This patent may be the (best) embodiment of a technical specification specified in AVS standard, or a fast algorithm, etc. Although these patents are not necessary for AVS standards, they may fall within the protection scope of these patents for products that meet AVS standards. 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 related enterprises, such patents still pose a great threat and need to be investigated. The following is illustrated by two specific patents (applications).
Example 1
On June 5438+ 10, 2005, Nokia applied for a patent named "Reference Image Management in Video Coding", with the patent application number of CN200580040403.8 and the publication number of CN10/0658. Claim 1 of this patent is as follows.
A method of coding image sequence. The method comprises the following steps: using one or more images as reference images; Marking a reference image with a first parameter; Sending the first parameter as a signal to a decoder; And manage the use of reference images. Wherein the reference image is identified by a second parameter derived based on the first parameter.
The features of the technical scheme described in claim 1 can be summarized as follows.
A, using one or more images as reference images;
B, marking the reference image with the first parameter;
C, sending the first parameter as a signal to a decoder;
D, using reference image management;
E. the reference image is identified by a second parameter derived based on the first parameter.
The technical scheme adopted by AVS video standard text in "9.4.3 Reference Image Selection" is "No more than two reference images should be used in each frame, which should be the recently decoded I frame or P frame. The reference index value is used to determine the reference image used to decode the current image ... The reference index value increases with the increase of the distance (display order) between the reference image and the current image ... "
The standard stipulates that "no more than two reference images should be used for each frame of image" conforms to the feature A of the above patent. From "Reference index value is used to determine the reference image for decoding the current image". It can be seen that the "reference index value" is equivalent to the "second parameter" in this patent. "The reference index value increases with the increase of the distance (display order) between the reference image and the current image", and 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 conforms to the features B and E of this patent. AVS standard uses "reference image management", so it also conforms to characteristic D.
The feature "c, sending the first parameter as a signal to the decoder" of the above patent is not clearly defined in the AVS standard text.
To sum up, the AVS standard conforms to the technical features A, B, D and E of this patent, but there is no clear stipulation on the technical feature C, so this patent is an unnecessary patent of the AVS standard.
Example 2
ST Microelectronics Company, a joint venture between Italy and France, applied for a patent named "Method and System for Fast Sub-pixel Interpolation" in February 2005, and the patent application number was CN2005/KOOC-0/KOOC-0/2/KOOC-0/765./KOOC-0/,which was published on September 20, 2006. Claim 1 of this patent is as follows.
A method includes receiving video information including all 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 are generated simultaneously during sub-pixel interpolation; And performing sub-pixel interpolation. And at least some half pixels and 1/4 pixels are used to perform motion compensation.
This patent relates to the "sub-pixel interpolation" technology in video coding, which is a concrete implementation method of sub-pixel interpolation and can also be called a fast algorithm. The technical features of claim 1 can be summarized as follows.
A. receiving video information containing all pixels;
B, performing sub-pixel interpolation to generate half pixels and 1/4 pixels in parallel, wherein a plurality of half pixels and a plurality of quarter pixels are generated simultaneously during sub-pixel interpolation;
C. performing motion compensation using at least some of half pixels and 1/4 pixels.
For technical characteristics A and C, AVS standards are consistent. For technical feature B, the patent points out that "multiple half pixels and multiple 1/4 pixels are generated at the same time in the process of sub-pixel interpolation", but the AVS standard text does not stipulate whether to generate half pixels and 1/4 pixels at the same time.
To sum up, the AVS standard conforms to the technical features A and C of this patent, but there is no clear stipulation on the technical feature B. Therefore, this patent is an unnecessary patent of the AVS standard.
Analysis of two examples
The above two patents are non-essential patents of AVS standard. Judging from the filing date, the filing date is after the release of AVS standard. These two patents involve the technical modules of "reference frame selection" and "sub-pixel interpolation" in AVS standard, and similar patents are likely to exist in other technical modules. It is not difficult to imagine that the patent deployment of related companies has been around the unnecessary patents of AVS standard.
Therefore, for related enterprises, it is far from enough to analyze only the necessary patents involved in the standard itself when judging whether the product has the risk of patent infringement, because the standard is only a few framework provisions, and in the specific product implementation, it will also involve some unnecessary patents of the standard, which will also pose a threat to related enterprises, and its threat may be even greater because of its concealment.
Of course, the above two patents are still in the open or real experimental stage, and it is still unknown whether they can be authorized. However, for related enterprises, preparing, searching and analyzing related patents as early as possible, even if patent infringement lawsuits are filed, can also deal with them well. Moreover, some speculative patentees, in the early stage of developing or producing a product, will not jump out and say that your product infringes his patent. When your product goes on the market on a large scale, these hidden patentees will jump out and claim their rights. Because your product design contains his patented technology, these patentees will be in a very favorable position in the negotiation. If enterprises find these patents that can cause trouble in the product development stage, they can make countermeasures as soon as possible. It is a time-saving and labor-saving method to nip in the bud and solve small problems before they become big problems.
Coping strategy
The author believes that the standard non-essential patents found in the process of retrieval and analysis may bring trouble to related enterprises, and at least there are the following coping strategies.
For unauthorized patents, investigate whether they have the conditions for granting patents. For the troublesome patents retrieved, if it is found that they are not novel and creative after analysis, such as the scope of their claims is too wide, which has covered the existing technology, or the prophetic technology/patent that is the same as the patented technical scheme is found, then the patent may not be authorized and the enterprise can use it with confidence. However, if the technology/patent in Oracle Bone Inscriptions is hidden, it may be difficult for Patent examiners to find it, so that the found technology/patent in Oracle Bone Inscriptions can be submitted to the patent examination institution, and the patent cannot be authorized. It is much easier to do this than to void the patent after authorization, and it also eliminates the risk of patent infringement when the product is listed in advance, and eliminates worries.
Adopt evasive design scheme. For the troublesome patents retrieved, if there is no strong evidence to destroy the novelty and creativity of the patent, we can analyze whether the technical characteristics of the patent are irreplaceable, that is, consider adopting evasive design. That is to say, for some technical features in the patent, whether alternative technology can be selected to obtain the same technical performance without infringing the patent right. If the enterprise does not search and analyze the related patents during product design, it is very likely that it inadvertently uses the technical features of the patent, which may lead to patent infringement.
For example 1, the key point that this patent is not necessary for AVS standard lies in "sending the first parameter as a signal to the decoder". If the AVS-compliant product is designed to send the first parameter as a signal to the decoder, it is likely to fall within the protection scope of this patent. However, if the second parameter is passed to the decoder, the patent can be successfully avoided. In the second example, the key point that this patent is not necessary for AVS standard is that "multiple half pixels and multiple 1/4 pixels are generated at the same time during sub-pixel interpolation", which is essentially a fast algorithm to realize sub-pixel interpolation. If the sub-pixel interpolation process does not produce half pixels and 1/4 pixels at the same time, that is to say, some technical features and corresponding performance of the patent are omitted, then the patent can be avoided. Of course, how to adopt evasive design needs to consider all aspects comprehensively before choosing the most favorable evasive design scheme for enterprises.
Although enterprises can also take other ways to avoid infringement, such as patent invalidation and obtaining patent license through negotiation. If the patent is authorized, it will be a huge waste of time and expenses in negotiations and litigation. For an enterprise, how to get higher income is its pursuit goal. Therefore, in the process of product development and production, it is an effective and economical method to avoid technologies that may have patent problems and choose alternatives with the same technical effect without affecting product performance and company interests.
Obtain permission through negotiation. If the patent has been authorized, but you can't invalidate it, or the patent is not authorized at present, but it is found that it has the conditions to be granted a patent after analysis, and your product is just within the scope of patent protection, and there is no suitable circumvention design scheme, then you need to prepare for litigation or obtain a patent license at the lowest possible price. In view of the large number of patent authorizations, the settlement of patent disputes is more than that through litigation. If we do enough work in advance, we can be targeted in the patent authorization negotiations and win relatively low licensing fees for the company.
Actively deploy patents and turn passivity into initiative. In the process of standard formulation and after the publication of standards, the competitive strategies of related enterprises as patentees may be different. In the process of standard setting, most enterprises hope that the standard setting institutions will accept their own technical solutions as much as possible. Once its patented technology enters the standard patent pool and becomes a standard necessary patent, enterprises can obtain huge benefits through the implementation of technical standards, including patent licensing fees and market control rights. When the standard text is published, the patent deployment of related enterprises may focus more on patents that are unnecessary for the standard. For powerful enterprises, if they can actively guard against the risk of patent infringement and purposefully deploy unnecessary patents in AVS standards, they can turn passivity into initiative.
Standard unnecessary patents still have their analytical value, especially in the field of audio and video coding, patents abound. Enterprises need to search and analyze patents in related fields before developing, producing and selling products that meet relevant standards. Patent retrieval and analysis should not be limited to the essential patents involved in the standard itself, but also actively guard against unnecessary patents in the standard.