The intellectual property system is an effective way to stimulate innovative activities and promote the development of science and technology. Over the past 20 years since our country established its intellectual property system, it has achieved world-renowned achievements and has become one of the world's major intellectual property countries. Taking patents as an example, as of August 2008, the number of patent applications had reached 4,523,992. Huge patent achievements have played an important role in the economic growth of the entire society. Nowadays, the awareness of intellectual property rights in the whole society has generally increased, and the social environment for intellectual property rights has been continuously optimized. In this context, the development of enterprises must grasp two important aspects. On the one hand, we actively carry out innovative activities and promptly protect our own intellectual property rights; on the other hand, we respect the intellectual property rights of others and follow the bright road of legitimate development. In normal production and operation activities, all enterprises actually face the risk of infringing the intellectual property rights of others and bearing corresponding liabilities. If enterprises face up to this practical problem, fulfill their reasonable duty of care, and actively take reasonable measures, the risk of infringement can be greatly reduced. Let’s take patents as an example to analyze how companies can reduce the risk of patent infringement.
Patents are the main source of infringement risks
(1) Disclosed patented technologies
After a new invention is completed, the inventor or relevant units generally file a patent application in a timely manner. After review by the State Intellectual Property Office in accordance with the law, patent rights will be granted to those that meet the conditions, and the technical solution and protection scope of the patent application will be disclosed to the public in the form of a patent bulletin. The public can learn about relevant technical information and scope of protection. Once an invention is patented, it is protected by patent law. No one is allowed to manufacture, use, import, sell or offer to sell patented products or use patented methods for production and business purposes without the permission of the patentee. Otherwise, he will bear corresponding legal liabilities. If an enterprise does not pay attention to patent gazettes, fails to search patent documents in related fields in a timely manner, or misses detection during the search process, there is a risk of infringement. Infringing on someone else's patented technology that has been disclosed in publications is a low-level mistake. This kind of low-level mistake should not happen in today's society. Now is the era of the international Internet. Information technology is very developed. A person can know everything about the world without leaving home. He can search domestic and foreign patent documents for free and calmly. He can read the relevant patent specifications and claims in detail and understand them clearly. Understand the technical content and protection scope of patents, and understand the legal status of patents.
(2) Undisclosed patented technology
From the date of filing a patent application to the date of publication by the State Intellectual Property Office, an invention-creation shall There is a period of time, usually 18 months, or a shorter period if the applicant requests early disclosure. The patent application technology during this time period is in the approval process of the State Intellectual Property Office, and the relevant information is unknown to the public. Even if the patentee conducts a careful and careful search, it is impossible to retrieve it. Unpublished patent-pending technology presents a potential risk to others. Once these technologies are published in the future, they will obtain temporary protection, and the applicant has the right to require payment of remuneration from those who implement the technology. Once the patent rights are obtained, they will have exclusive rights. If someone else implements a technology that falls within the scope of patent protection for the purpose of production and operation without the permission of the patentee, it constitutes patent infringement, even if they implement a technology project independently developed by themselves, unless they enjoy the right of prior use. .
(3) Patent applications with priority from abroad
my country is a member state of the Paris Convention for the Protection of Industrial Property. The Paris Convention stipulates that applicants from each member country enjoy national treatment. After the applicant files a patent application in any other member state, within 18 months for invention patent applications and within 12 months for utility model and design patent applications, the application date shall be determined based on the first application date in China. The date of application filed abroad shall prevail.
This brings a risk to enterprises. If they implement a technology that has not applied for patent protection in my country at the time, there may also be infringement disputes in the future.
(4) Different permissions of prior patents and subsequent patents
After a new technology obtains patent rights, a scope of patent protection is determined . Innovations made by others on this basis are also inventions and creations and can apply for and obtain patents. An earlier patent is generally called a basic patent, and a later patent is called a dependent patent. The implementation of the later patent depends on the earlier patent, and the implementation of the earlier patent is subject to the later patent. In this case, it is generally necessary to negotiate with each other and cross-license under certain conditions. Otherwise, there is a risk of infringement.
(5) Identical to patented technology
Before an enterprise implements a technology project, although it does not find the same prior patented technology after searching, However, if compared with a valid patented technology, it uses basically the same means to achieve basically the same functions and achieve basically the same effects, and this basically the same means can be used by ordinary technicians without creative labor. Obtained from patented technology. Then, it may be deemed to be equivalent to the patented technology, and there is a risk of infringement.
(6) Regional and temporal nature of patents
Patent protection is regional and temporal. The laws of various countries only protect patents approved in accordance with their own national patent laws. patent. Patent protection periods vary in length, and some countries can even apply for “renewal” of patent protection periods in certain fields. There are also risks in exporting patented products to different countries and regions. There may be no problems in some countries and regions, but there will be infringement disputes in other countries and regions.
Measures to reduce the risk of patent infringement
(1) Establish a reliable rights basis
Enterprises Production and operation activities must be based on reliable rights. First, it is based on existing technology, careful production and operation, and the use of existing technology can defend against infringement accusations. The second is to build on the scientific and technological achievements for which one has legal rights. The scientific and technological achievements include patents, patent applications, computer software, technical secrets, integrated circuit layout designs, and new plant varieties. The third is based on obtaining legal authorization. Good technology projects developed by others and obtained intellectual property protection should be respected. If an enterprise is optimistic about such a project, it can obtain legal authorization through license trade. .
(2) Apply for patents in a timely manner for new inventions
In the field of patents, most countries in the world implement a first-to-file system. Once you have achieved inventions and creations, even if it is a small improvement with substantial significance, you must apply for a patent as early as possible to protect your rights and interests. If you delay applying for a patent for an invention that has been completed, someone else may take the first step and apply for a patent. In this way, the rights and interests will be lost and the risk of infringement will increase. However, for some technologies that are not easily mastered by others through market purchase and reverse engineering, it is also advisable to protect them in the form of technical secrets.
(3) Tracking and reviewing patent documents
Patent application and authorization information is published in the Patent Gazette. By tracking and consulting patent gazettes at any time, you can grasp the latest technological trends in this field and effectively reduce the risk of infringement. It is also an important means to improve the effectiveness of corporate R&D activities. Anyone can log on to the website of the State Intellectual Property Office and check patent information for free.
(4) Preservation of evidence of prior use rights
According to the provisions of Paragraph 2 of Article 63 of the Patent Law, the same product has been manufactured before the patent application date. If the product, uses the same method or has made necessary preparations for manufacture and use, and continues to manufacture and use it only within the original scope, it does not constitute an infringement. This legal right of an enterprise is generally called the right of first use.
In practice, if an enterprise wants to establish its right-of-use status, it must provide a series of evidence. Such as new technology project documents. Meeting minutes, engineering design drawings, invoices for purchasing related raw materials, equipment, production plans, etc. Enterprises must keep this evidence well. This is a historical record of their own technological development, and it will be of great use at critical moments.
(5) Technical consultation
When the technology project to be implemented may fall into the effective patent protection scope of others, but the enterprise is not sure of it At this time, if you don't move forward, you may lose development opportunities, and if you move forward, you may risk infringement. In this case, the enterprise can submit a consultation request to a consulting agency or judicial appraisal agency recognized by the court or designated by the judicial administrative agency. These institutions have a group of experts who understand the professional technology in this field and are familiar with the law. After careful comparison by these experts, the corresponding agency will issue a consulting report. Although these advisory reports are only advisory opinions and are not binding, they still play an important role and often become important evidence to determine whether there is infringement. If the company has done this step in advance, it can reduce the risk of infringement and make the work situation more proactive.
Suggestions
Enterprises are independent entities in the market. Enterprises must establish several basic concepts in their development. First, the rapid development of enterprises mainly comes from technological innovation. Second, any advanced technology is a small stage achievement in the long history of human development: The third is to use legal means to protect one's own intellectual property rights, and the fourth is to respect the intellectual property rights of others. Large and medium-sized enterprises should establish their own early warning mechanisms and try to resolve possible infringement disputes before they take shape. When you find that someone else's patented technology is important to your company, you should carefully study the validity and effective scope of protection of the other party's patent. For technology projects that are indeed advanced and have market prospects, you can sign a licensing contract to obtain legal authorization, or you can improve existing patented technologies, establish a series of relevant peripheral technological achievements of your company, apply for patents and obtain legal protection, and On this basis, we will negotiate amicably with the basic patent holder and strive to obtain a cross-license.