Discussion on patent application strategy of new technology enterprises
Abstract: the first condition for identifying the qualification of high-tech enterprises is that enterprises have independent intellectual property rights. The state gives certain preferential tax policies to high-tech enterprises that have passed the accreditation. After the introduction of the new regulations on the determination of high-tech enterprises, the enthusiasm and initiative of enterprises to apply for national patents have been greatly improved.
1 overview
With China entering the period of industrial upgrading and transformation, the state has implemented a series of measures to support high-tech enterprises to start businesses, and many returned overseas students or domestic venture capital entrepreneurs are devoting themselves to the establishment of high-tech enterprises. It is not difficult to establish an enterprise with a strong high-tech asset reserve. The main problem is how to define "high technology". In the past, domestic new technologies or new scientific research achievements were all based on achievements appraisal or papers.
With the establishment and rapid development of China's patent protection system in the era of reform and opening up, the scope of patent protection is in line with international standards, the number of domestic patent applications is increasing exponentially, and the intensity of patent protection is also increasing. For small and medium-sized high-tech enterprises that really rely on high technology to support their own development, applying for patents is also an important means to improve their technical level and establish their position in the high-tech field. More importantly, enterprises can obtain the protection of the national patent law by applying for patents, and establish their own patent pool for the protection of high-tech products, which is a good legal means to prevent unfair competition and is conducive to encouraging enterprises to increase investment in independent innovation technology.
The establishment and development of high-tech enterprises can not be separated from the core technology with independent intellectual property rights. With the development of modern science and technology, the means to solve problems are often like a layer of enough paper, which can be punctured with a little force. Before it is broken, people who do related technical work often think that they are facing a thick wall and want to bypass it. From the perspective of technological development, small and medium-sized new technology enterprises generally lack economic strength, and they are more eager to protect their new technology products than large enterprises. Otherwise, as soon as new technology products are put into trial production, there will be many counterfeiters, and latecomers can put low-priced products into the market for vicious competition without investing huge pre-development costs. This vicious competition is not conducive to promoting the development of high-tech industries. The development of high-tech enterprises is not only to improve their technological innovation ability, but also to build their own patent protection system with the help of the national patent protection system.
At present, China's high-tech enterprises urgently need to strengthen their understanding of patent protection. The newly established small and medium-sized enterprises are nothing more than a group of people with the same major and a strong understanding of a new technology field. They have a deeper understanding of their familiar technical fields, and they believe that they can develop a product that occupies the market in this field, raise funds to start their own enterprises, and invest in technical development in order to develop successful market-oriented products. In this development period, enterprises should keep track of the technical development of products in this field, especially the contents of various patent announcements. And according to their own development progress at any time to adjust and put forward their own intellectual property documents. Carefully examine whether your own research ideas are reasonable, whether it is the best path, whether you are developing technologies that others already have, and pay special attention to relevant patent information at home and abroad to avoid the embarrassment of patent application for technologies that have been painstakingly developed. The opportunity for enterprises to apply for patents needs to be carefully considered and should not be too early. Premature application must be in the initial stage of technological development, and the scope of protection of patent application must be written broadly rather than accurately and clearly defined. By the time the product is produced, competing colleagues may have applied for the invention of their peers, and they have fallen behind.
The number of patents owned by enterprises is an important index to measure the independent innovation ability of high-tech enterprises. High-tech enterprises usually apply or continue to apply for patents at the beginning of their establishment. According to China's patent law, patent applications include invention patents, utility model patents and appearance protection patents. For an innovative enterprise focusing on developing new technologies, the scope of protection of appearance protection patents is relatively limited, and the application of utility model patents and invention patents has important practical significance, both of which have their own advantages and disadvantages. According to the provisions of the patent law, an application for a patent for utility model will generally be approved soon as it conforms to the provisions of the patent law. The disadvantage is that the utility model only protects the technical scheme of product type, but not the technical scheme of manufacturing related product method type. Moreover, because the utility model has not been substantially examined in the examination and approval process, its patent stability is poor. The remedy is that the applicant or patentee requests the Chinese Patent Office to search for the utility model and obtain the patent analysis report obtained after the search by the Patent Office, because the search process is similar to the substantive examination process of the invention patent application, and the conclusion of the utility model search report is generally equivalent to the substantive examination result of the invention patent.
Because of the different trial procedures of utility model patents and invention patents, their protection effects are also significantly different. Although utility model patents are conducive to obtaining patent authorization at an early stage, due to the lack of substantive examination, the stability of a considerable number of utility model patents is not good. If the applicant makes a search request, he will get an unpatented result. This situation is partly because the applicant's technical scheme is not patentable, which is to apply for a product that belongs to the technical scheme of the existing technology. However, there are many reasons why the applicant's application documents are improperly written. The specific problems of improper writing will be introduced in the discussion later in this paper. It takes a long time to apply for a patent for invention, because the examination and approval process of a patent for invention is complicated, mainly through the examination department of the patent office to conduct substantive examination of the technical scheme of the patent. This process is a two-way process, not only decided by the actual examination department of the patent office or the examiner in charge of the trial. After the invention patent enters the substantive examination procedure, the applicant will often receive one or more notices of examination opinions. Every time he points out the specific problems in the application documents that are not in conformity with the Patent Law or the detailed rules for implementation, the applicant can overcome the pointed problems as soon as possible. On the contrary, it will drag on for a long time.
2 Consideration of patent application
According to the measurement standard of independent innovation ability of high-tech enterprises, the number of patents owned by enterprises can be used as an important indicator. High-tech enterprises usually apply or continue to apply for patents at the beginning of their establishment. To promote the development of high-tech industries, it is of course necessary to improve their own technological innovation capabilities, such as strengthening the technical composition within enterprises, increasing the proportion of R&D expenditures, and improving their own R&D institutions. On the other hand, with the help of the national patent protection system, it is also an important legal measure to construct our own patent network reasonably, which reflects the protection of our own patents and respect for others' patents. Among them, the intellectual property rights of high-tech enterprises are mainly reflected in patent application, ownership and patent protection of enterprises. China is a post-industrialized country, so it is quite difficult to produce original inventions. However, with the progress of science and technology, many products are updated quickly, which leaves considerable room for the development of high-tech small and medium-sized enterprises in China.
In demanding intellectual property rights, China's new technology enterprises should learn from Japanese companies and Korean companies. These two countries are very dedicated and persistent in patents. As long as it is in your own field or around your own field, it always revolves around a relatively basic technology patent. Seriously study and apply for a large number of interrelated patents around this basic patent. Japanese companies and Korean companies have invested heavily in technology development and can always develop a large number of authorized patents. These patents are generally significant improvements on the basis of the original basic patents. Japanese and Korean enterprises take these improved patents as capital and obtain the exchange authorization of basic patent development enterprises, which not only tenaciously maintains their own market scope, but also reduces the pressure of patent barriers formed by high-tech patents on domestic enterprises. After years of investigation, the author found that the proportion of individual applicants in China's patent applications is relatively high, while the number of applications from small and medium-sized enterprises is relatively small. Many enterprises only apply for a few invention patents, or even only use new applications. This is, of course, due to the lack of technical ability or deep understanding of intellectual property rights of related enterprises, but there is also a misunderstanding that enterprises apply for patents: understanding patents as technical know-how of enterprises should be kept strictly confidential, which delays the time of patent application.
So what is the development path of intellectual property rights of small and medium-sized high-tech enterprises? Article 2 of the Patent Law stipulates that "inventions mentioned in this Law refer to inventions, utility models and designs. Invention refers to a new technical scheme proposed for a product, method or its improvement. Utility model refers to a new practical technical scheme for the shape, structure or combination of products. Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of color and shape and pattern.
For an innovative enterprise focusing on developing new technologies, the scope of protection of appearance protection patents is relatively limited, and the utility model patents and invention patents which are of great practical significance to the independent intellectual property rights of enterprises have their own advantages and disadvantages. Article 37 of the Patent Law stipulates that "if the administrative department for patent in the State Council considers that the application for a patent for invention is not in conformity with the provisions of this Law after substantive examination, it shall notify the applicant and ask him to state his opinions or amend his application within a specified time limit; If no reply is made within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. " Article 40 of the Patent Law stipulates that "if the application for a patent for utility model or design is not found to be rejected after preliminary examination, the administrative department for patent in the State Council shall make a decision to grant the patent right for utility model or design, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement. " Comparing the above terms, we can realize that as long as the application for a patent for utility model conforms to the provisions of the patent law, it will be approved soon without substantive examination. According to the statistics of the State Patent Office, the average examination period of utility model patent applications is 6. 1 month.
The disadvantage of applying for utility model patent is that it only protects the technical scheme of product type, but not the technical scheme of manufacturing related product method type. Moreover, because the utility model has not been substantially examined in the examination and approval process, its patent stability is poor. The supplementary means is that the applicant or patentee requests the State Patent Office to search the utility model, and after the search, the patentability analysis report obtained by the Patent Office is obtained, because the search process is similar to the substantive examination process of the invention patent application, and the conclusion of the utility model search report is generally equivalent to the substantive examination result of the invention patent. As mentioned above, due to the different trial procedures of utility model patents and invention patents, their protection effects are also significantly different. The utility model patent is beneficial for enterprises to obtain patent authorization at an early stage. However, because the authorized utility model patents have not been substantially examined, the stability of a considerable number of utility model patents is not good. If the applicant makes a retrieval request, it is very likely that the retrieval result of the utility model patent is unpapatentable. On the one hand, the applicant's technical scheme is not patentable, which means that the technical scheme applied for protection belongs to the existing technology. But on the other hand, it is due to the improper writing of the applicant's application documents.
The specific problems of improper writing will be introduced in the discussion later in this paper. It takes a long time to examine and approve an application for a patent for invention, mainly because the examination and approval process of a patent for invention requires the patent examination department of the patent office to conduct substantive examination on the technical scheme required for patent protection. This process is a two-way process, not only decided by the actual examination department of the patent office or the examiner in charge of the trial. After the invention patent enters the substantive examination procedure, the applicant will receive one or more notices of examination opinions. Every time a specific problem in the application document is pointed out that does not conform to the patent law or the detailed rules for implementation, the applicant can overcome the pointed problem as soon as possible and get authorization. On the contrary, it will drag on for a long time. According to the statistics of the State Patent Office, the average examination period of an application for a patent for invention is 25.8 months.
3 patent application writing skills
Based on many years of technical work and ten years of patent examination experience, the author feels that many domestic applicants have problems in writing application strategies or technical solutions for protection in their application documents, which are often big or small. Patent documents are legal documents, and each description should be specific and clear, the technical terms used should be unambiguous, and the technical characteristics of the claims should be clearly described, especially the abbreviations or industrial dialects within the enterprise should not be used. This often leads to mistakes between the technicians who specialize in technical work and the patent lawyers who write patent application documents on their behalf. For example, the technical personnel of an enterprise regard their invention as the secret of product technical know-how, and do not write it in the application documents or only make a brief explanation in the application documents.
The agent also strictly abides by the requirements of the agent, so the written technical scheme for patent protection is very short. The examiner can only search for the patent according to the technical scheme for protection outlined in the claims, find the patent application documents and non-patent documents that disclose the invention content according to the maximum scope he can ask for protection, and judge that they are not patentable according to the public content of the retrieved documents. The applicant made a detailed description of its technical scheme only after seeing such an opinion notice, and independently determined that only the scope of protection defined by the claim is the only understanding, and the description was identified by the examiner as not recorded in the original application documents according to the patent law or the detailed rules for the implementation, which led to the application not being approved.
Here is an example of a patent application, which requires the technical scheme of the product and the method of obtaining the information carried by electromagnetic waves through the thermal effect of electromagnetic waves. In the claims of the original application, the applicant wrote the independent claim with the largest protection scope as follows:
A signal processing method for extracting baseband information from broadcast signals includes: converting radio frequency signals into heat; Measure the temperature change representing the RF signal.
The apparatus for extract baseband information from a broadcast signal according to claim 6 comprise: a unit for converting that broadcast signal into temperature oscillation; A device that converts temperature oscillation into mechanical motion.
The scope of protection of the claims is very simple. According to the relevant description in the specification, the broadcast signal is a modulated electromagnetic wave carrying a baseband signal. Therefore, the scheme is that the emitted electromagnetic wave is a time-varying signal, and its temperature effect in the receiving equipment is also time-varying. Detecting temperature changes and extracting baseband signals carried by modulated electromagnetic waves have the function of heating objects, which is well known to ordinary people in the field. Patent examiners can easily retrieve relevant comparison documents, and thinks that this claim is not patentable. After several notification exchanges, the applicant repeatedly revised the claim and finally authorized the corresponding claim:
A signal processing method for extracting baseband information from broadcast signals includes: converting radio frequency signals into heat; Measuring a temperature change representative of a radio frequency signal, wherein thermal oscillation is converted into mechanical motion, wherein the mechanical motion is generated by a micromachined thermo-mechanical actuator, and wherein the actuator has a resonant frequency matching the frequency of the temperature change.
The apparatus for extract baseband information from a broadcast signal according to claim 8 comprise a micromechanical bolometer for converting that baseband information in the broadcast signal into a time-varying thermal field; A micromachining thermo-mechanical actuator with a circular arch supported by a substrate, wherein a bolometer is arranged at the edge of the circular arch, so that the time-varying thermal field provided by the bolometer changes the mechanical oscillation of the actuator; A device that generates a signal in response to changes in mechanical vibration of an actuator.
Comparing the patent protection scope defined in the patent claims before and after this authorization, we can see that the patent claim submitted by the applicant for the first time is very brief, which only puts forward receiving electromagnetic radiation in a general sense and extracting the baseband information carried by electromagnetic waves according to the temperature change generated on the electromagnetic radiation target, and does not involve any specific content of how to extract the baseband information. The revised claim clearly records that electromagnetic radiation is radiated to the target body, so that the target body absorbs electromagnetic waves and generates heat, thereby generating thermo-mechanical motion on the target body, and the actuation is designed to match the frequency of temperature change. Obviously, this clearly defines the method of extracting baseband information through the frequency of temperature change. There are many ways to measure the temperature, and the specific way to measure the temperature change is not a necessary technical feature of the technical scheme claimed in this application, so there is no need to describe it in detail.
Another mistake that often occurs when applying for patent writing is that the core technical content of one's technological invention is not well measured. In the initial stage of high-tech enterprises, everything is relatively simple, so it is naturally difficult to arrange their own patent technology leaders. Lawyers from patent agencies are usually invited to assist in writing patent application documents. There are many patent lawyers who are familiar with patent law and have rich experience in patent application. However, these lawyers do not necessarily have the specialized knowledge in the technical field unique to this high-tech enterprise, and it is difficult for most patent lawyers to be familiar with all technical fields, which will lead to poor communication in technical exchanges, resulting in errors in words. Therefore, when a high-tech enterprise needs to hire a patent agent, it is best to have a little technical exchange with the agent recommended by the agency company according to the specific technical field to understand his understanding of the company's technical field. In recent years, a large number of university science and engineering graduates have entered patent companies, and these younger agents are familiar with related technical fields. They may be more familiar with the technical progress and professional development direction in this field than those senior patent agents with legal background, and they can write patent application documents that are beneficial to high-tech enterprises themselves more appropriately.
The application discloses a modular control circuit for a converter, which is arranged on a printed circuit board and used for connecting and controlling the converter circuit to drive the actions of a plurality of lamps. The lamp current feedback unit is connected to the control integrated circuit and a plurality of lamps, acquires the working currents of the lamps, converts them into voltage forms and sends them to the control integrated circuit; A lamp voltage limiting unit, connected to the control integrated circuit and the lamps, for acquiring the operating voltages of the lamps and transmitting them to the control integrated circuit; Brightness level control unit, connected to the control integrated circuit and a plurality of lamps, for adjusting the brightness of the lamps; A lamp protection unit connected to the control integrated circuit and a plurality of lamps for protecting the plurality of lamps from open circuit and short circuit; The power control unit is connected to the control integrated circuit and used for providing the power needed for controlling the operation of the integrated circuit; The reference unit connected to the control integrated circuit consists of a plurality of resistors and capacitors, and is used for providing reference values required for controlling the operation of the integrated circuit.
This claim is very long, and the scope of protection is relatively small in patent examination. But a careful analysis reveals that it records all the existing technologies. The claim protects a "modular control circuit of converter" to drive the actions of multiple lamps, which are usually called electronic ballasts. It is an electronic circuit product, including multiple resistors and capacitors. How can modern electronic circuits not use printed circuit boards?
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After consulting the technical textbooks of secondary schools in this field, I know that electronic ballasts are all a technical scheme: alternating current is converted into direct current through rectification or direct use of direct current power supply, and a DC- AC inverter with inverter control module converts direct current into high-frequency alternating current to light fluorescent lamps or other types of gas discharge lamps. Feedback the measured current and voltage on the lamp to the inverter control module of the electronic ballast to control the current and voltage on the lamp to be stable. When the detected data exceeds the predetermined range, it is judged that the lamp tube is faulty, and the electronic ballast is turned off to provide fault protection.