As the main participants in market economic activities, enterprises are closely related to national economic development and strategy implementation.
In the official discourse system, China’s economy has entered a new normal. Under the new normal, it will be difficult for China's economy to continue the rapid growth of the past decade or so. The economic development model will change from being driven by factor input and investment scale to being driven by innovation. It can be said that driving economic development through innovation is the only way for China's economic transformation under the new normal.
As the main participants in market economic activities, enterprises are closely related to national economic development and strategy implementation. Compared with the past era of rapid economic growth, Chinese enterprises need to face more severe and complex challenges from internal and external factors under the new normal. Achieving business transformation and upgrading through innovation will be an inevitable choice for Chinese enterprises to improve their competitiveness under the new normal. Especially at a time when domestic labor costs are rising and internal and external market demands are changing, innovation capabilities determine the survival of an enterprise to a certain extent.
Both the improvement of national innovation capabilities and the development of corporate innovation activities are actually closely related to the intellectual property system. Intellectual property rights enable innovative entities to exclusively enjoy the benefits and competitive advantages brought by innovative results by giving them property rights protection. Just imagine how innovative entities would have the motivation to continue to innovate without the support of the intellectual property system. For this reason, under the new normal, Chinese companies should make good use of intellectual property systems and rules, formulate and implement intellectual property strategies, and build an inexhaustible driving force and legal protection system for corporate innovation.
1. Principles for formulating corporate intellectual property strategies
1. Based on oneself
Enterprises should base their intellectual property strategies on their own actual conditions and must not blindly follow the trend or deviate from it. Actual pursuit of perfection. Before formulating an intellectual property strategy, an enterprise should analyze the competition situation, development direction and its own position in the industry, and determine the focus and management model of the enterprise's intellectual property according to the enterprise's innovation model, development goals, etc.
2. Synergy
In the final analysis, corporate intellectual property strategy serves the overall development of the company. Therefore, intellectual property strategy cannot be isolated from the company's overall development strategy and should be integrated with other aspects of the company. Business strategies such as human resources strategy, financial strategy, R&D strategy, etc. are coordinated and organically coordinated with each other. Intellectual property management should strive to be embedded into the daily operations of the enterprise together with other management activities.
3. Economic Rationality
For most Chinese companies, intellectual property is still a financial expense item and has yet to become a source of profit for the company. If Chinese companies want to make profits through intellectual property rights, they must still have a long way to go. Under this circumstance, corporate intellectual property strategies should adhere to economic principles, pay attention to cost control and strive for additional subsidies. For example, abandon the aggressive patent application quantity strategy, regularly evaluate the maintenance value of authorized patents, apply for high-tech enterprise certification, and strive for national or local patent funding, etc.
4. Open cooperation
Enterprise intellectual property advantages are not achieved overnight and require long-term accumulation. Under the new normal, enterprises should break the concept of self-reliance, and instead open the door to cooperation, actively integrate external resources, and achieve rapid accumulation of intellectual property strength. For example, through industry-university-research cooperation, mergers and acquisitions, etc., we can quickly gather intellectual property assets and brand advantages.
II. Core tasks of enterprise intellectual property management
1. Establish an effective innovation incentive mechanism
Enterprise scientific and technological innovation is inseparable from the efforts of R&D personnel and the mobilization of The enthusiasm of R&D personnel is the key to improving the innovation capabilities of enterprises. Therefore, it is necessary for enterprises to formulate a service invention reward policy, which is also a requirement of patent law. In order to reduce costs, some companies often do not reward inventors, or unilaterally formulate lower reward policies. Not only is this not conducive to motivating current employees, but it can also easily create litigation risks when the inventor leaves the company.
2. Choose a management model suitable for your own development
Enterprise intellectual property management models will be different at different stages of enterprise development. For example, in the start-up stage, enterprises often cannot afford to set up a dedicated Intellectual property management teams tend to outsource to intermediaries. When an enterprise is able to form a dedicated team, the intellectual property management model will also be divided into R&D-led or legal-led. There is no standard answer to which one is better or worse. Therefore, when designing a management model, enterprises still have to design according to their own actual conditions.
3. Focusing on the acquisition and transformation of intellectual property rights
The purpose of enterprises implementing intellectual property strategies is to gain competitive advantages and create value. It is therefore crucial to accumulate high-value intellectual property assets and convert them into sources of profit. Currently, China ranks first in the world in terms of patent applications, most of which are contributed by Chinese companies. However, the number of patents alone is not enough. Only by acquiring more high-value patents and converting patents into actual productivity can intellectual property truly become the driving force for corporate innovation.
4. Prevent and control overseas intellectual property risks
With the implementation of the "One Belt, One Road" strategy, Chinese companies will move more into overseas markets, and the intellectual property risks that will follow It cannot be ignored that companies such as Huawei, ZTE, and Xiaomi have been subject to patent infringement lawsuits by patent phishing companies (NPEs) or competitors in overseas markets. This is an example. Therefore, Chinese companies should take precautions and deploy patents and trademarks in overseas target markets in advance to enhance their ability to prevent and control intellectual property risks.
3. Basic structure of enterprise intellectual property strategy
Enterprises involve a wide range of intellectual property types, common ones include patents, trademarks, copyrights, etc. There are differences in the acquisition, survival and protection of these rights, and they also affect enterprise development in different ways. Therefore, it is a feasible solution to structure corporate intellectual property strategies according to intellectual property types. Specifically, corporate intellectual property strategies can be divided into patent strategies, trademark strategies, copyright strategies, etc.
(1) Patent strategy
Patent strategy is the most important component of the intellectual property strategy of technology companies. Its main content can be divided into patent information utilization, patent application, patent maintenance, and patent protection. Implementation, reward and punishment policies. The goal of patent strategy is: Wherever R&D and market go, so will the patents? [Yuan Jianzhong: "The Theory and Practice of Enterprise Intellectual Property Management", Intellectual Property Press, 2011 edition, page 100. ]
1. Utilization of patent information
Patent information is an important source of technical and scientific information. Through patent documents, enterprises can understand the current status of technological development, track technological development trends, and monitor competitors. Research and development trends, evaluate the strength of cooperation partners and identify experts. [Xu Difeng, Shen Hui: "Corporate Intellectual Property Strategy", Intellectual Property Press, 2010 edition, pp. 41-42. ] Therefore, enterprises should pay attention to the use of patent information in R&D and competitive activities. For major R&D projects, patent searches should be conducted at important nodes of R&D to adjust R&D directions, bypass competitors' patent layouts, and evaluate the freedom of R&D results. degree of implementation.
2. Patent application
Patent application is currently the main means for Chinese enterprises to accumulate patents and is the cornerstone of patent strategy. The ability to effectively manage patent applications is related to the success or failure of an enterprise's patent strategy. The following nodes require enterprises to attach great importance to:
First, whether it is necessary to apply for a patent. Not all research and development results should be protected by patents, although patent rights have strong monopoly power. Obtaining patent rights requires disclosure of technical solutions, which must be novel, creative and practical. Therefore, for technical solutions with low creativity, short business cycles, poor visibility of infringement (such as internally implemented communication methods), and technical solutions with high commercial value that are difficult to develop or obtain through reverse engineering, trade secret protection should be appropriate. ; On the contrary, patent protection is appropriate for technical solutions that have greater commercial value, higher research and development costs, are difficult to obtain and circumvent by competitors, and have greater defensive functions in the target market. [Zhu Xuezhong, Qi Changwen, Shao Yang: "On Patent Application Strategy", published in "Scientific Research Management", Issue 3, 1994.
]
Second, when and where to apply for a patent. The timing of patent application should be determined by the nature of research and development and the competitive situation. For pre-research results, because the market prospects are not clear, patent applications are somewhat of a gamble; at this time, basic technical solutions can be applied for and laid out early, while peripheral technical solutions surrounding the application of basic solutions can be relatively complete after the technical solutions are completed. proposed at the time. For technical solutions that are ready for productization, you should apply for a patent as early as possible to avoid being preempted by competitors. For strategic patent applications, timely decisions can be made after analyzing competitors' R&D trends and product layout. The patent application area should be determined according to the target market of yourself and your competitors, so that you can attack when you advance and defend when you retreat. First, in your own target market, you should conduct patent layout at the latest before product launch to reduce the risk of patent litigation; secondly, you should also conduct patent layout for your competitors' target markets. In this way, not only can you take the initiative to sue, but you can also promptly counterclaim when being sued.
Third, what kind of patent to apply for? Since the subject matter, acquisition method, authorization conditions, protection period, etc. of the three patents of invention, utility model, and design are different, it is difficult to choose which patent form to protect. When making an invention, it is necessary to consider the patentability, purpose of application, economic life and other factors of the invention. Generally speaking, it is not difficult for enterprises to choose the specific form of protection for inventions and creations.
However, it should be pointed out that most domestic enterprises currently have a misunderstanding, that is, inventions are more useful than utility models, and appearance designs have the lowest value. In fact, these three patents have their own strengths, and any patent can achieve unexpected results as long as it is used properly. At present, product sales do not entirely rely on function and performance. Novel appearance is also the highlight of product marketing. It is very necessary to protect the creative appearance. In addition, design infringement is highly visible and infringement determination is relatively easy. The use of design patent rights can achieve rights protection effects in a short period of time.
Fourth, how to control patent quality. Under the new normal, the pressure on enterprise development and competition is huge. It is obviously not wise to apply for and maintain patents that cannot bring competitive advantages to the company. Improving the quality of patents has become an inevitable choice for enterprises. We believe that to improve the quality of patents, we must start from three aspects:
The first is to enhance the research and development capabilities of enterprises;
The second is to conduct a good review of patent plans;
The third It is to control the quality of patent application texts;
Patent review is an effective way to control the quality of patents from the front stage. Generally, senior R&D personnel, marketing personnel and legal personnel are recruited to form a patent review committee to review the technical solutions submitted by the R&D personnel. We will review the creativity, market value, and visibility of infringement, and select relatively high-quality technologies or design solutions for patent application.
Patent application text is crucial to patent quality. Good technical solutions can become valuable patents only through superb patent writing. In practice, two or more patent agencies can be entrusted through bidding to achieve the purpose of competition and comparison; in addition, companies can recruit professionals to review patent application texts, or allow multiple agencies to review each other.
3. Patent maintenance
For companies with an increasing number of patents, patent maintenance cannot be ignored. The goal of patent maintenance is to ensure that valuable patents remain valid. Based on this, enterprises should regularly evaluate and screen out the patents that need to be maintained and the patents that can be abandoned from aspects such as the direction of technology research and development, whether they use it themselves, external market demand, and whether competitors may adopt it, and do a good job in payment management.
4. Patent enforcement
In a broad sense, patent enforcement includes not only patent licensing, transfer, investment, pledge, etc., but also patent rights protection. Although domestic enterprises still have a long way to go in terms of patent implementation and transformation, as their innovation capabilities continue to improve, the patent implementation and transformation rates are still worth looking forward to. At present, in addition to establishing a contract management system for patent licensing, transfer, pledge, etc., domestic enterprises should also establish a patent infringement monitoring mechanism and regularly analyze competitor products.
5. Reward and punishment policies
Reward and punishment policies are related to the enthusiasm of R&D personnel and are very important for corporate innovation. The patent law stipulates that inventors have the right to request rewards and remuneration. However, in order to save costs, some companies either cancel the rewards or the reward amount is too low. Although this can reduce corporate expenditures in the short term, it is not conducive to improving corporate R&D capabilities in the long term. In addition, if the incentive policy is empty or failed, it may easily lead to disputes when the inventor leaves the company.
A more appropriate way to deal with this is that the company should fully negotiate and communicate with all employees or employee representatives, formulate an incentive and remuneration plan acceptable to both parties, or include important R&D personnel in equity incentives and on-the-job dividends Incentive plans to reduce current cash expenditures.
Currently, more and more companies are beginning to implement patent assessment methods and assign annual patent assessment indicators to the R&D department or intellectual property management department. However, it needs to be emphasized that the current level of patent legal departments or personnel in corporate management is generally not high, and patent output is more dominated by the R&D department. Therefore, the current patent assessment indicators of enterprises should be placed on the research and development side.
(2) Trademark Strategy
The focus of corporate trademark strategy lies in the three aspects of trademark registration, use and protection. The importance and attention of these three aspects of work are different at different stages of the enterprise. The degree will also vary. However, it needs to be emphasized that corporate trademark strategy should be implemented in conjunction with brand operation strategy, and the two cannot be separated. It can be said that the core purpose of implementing trademark strategy is to establish an enterprise's brand.
1. Trademark registration
Although my country does not force companies to use registered trademarks on goods or services, the risk of using unregistered trademarks is relatively high. Especially before the trademark has achieved a certain degree of popularity, once it is registered by others, the company will face the risk of being prohibited from using it by the owner of the exclusive right to use the trademark at any time. Therefore, from the perspective of long-term development of enterprises, enterprises should try to use registered trademarks. Regarding trademark registration, you need to pay attention to the following points:
(1) Before the product (service) is moved, trademark registration takes precedence
After the product or service is launched, the trademark attached to it will change. Registered by a third party. Therefore, companies should apply for trademark registration at the latest before launching products or services on the market. Trademark registration generally takes more than nine months to be approved. After application and before approval, the applicant cannot actually prohibit others from using it. To avoid this situation, companies can file a trademark application during the product or service design stage and seek approval when it is launched.
(2) Trademark design should be combined with corporate brand marketing
In addition to ensuring distinctiveness, trademark design should also be combined with corporate brand image, that is, trademark graphics and text should be simple It is clear and has a positive meaning, which is conducive to showing a good image of the company. It should be reminded that the graphic and text design of the trademark should avoid using other people’s works and trademark graphics and texts.
(3) Conduct a trademark search before applying
To ensure that the trademark application can be approved, enterprises should conduct a trademark search before applying for a trademark to confirm whether others have applied for the same or similar trademark . Currently, the website of the Trademark Office can be searched for free, but due to the lag in data updates, companies should conduct re-inspections on a regular basis.
(4) Registration covers core and similar categories
In addition to the right to use the registered trademark on the approved goods, the holder of the exclusive right to a registered trademark can also prohibit others from using the registered trademark on the same or similar goods. Use identical or similar trademarks (except those that will not cause confusion). Therefore, from the perspective of expanding the scope of use of enterprises and blocking the scope of use of competitors, trademark registration should cover the categories of their own goods and similar goods.
(5) Separate application and combined registration
For combination trademarks including words, patterns, letters, etc., enterprises can first apply for the words, patterns, letters, etc. separately, and then register them in Apply together. Although this requires two application fees, it can reduce the risk of the combined trademark being rejected as a whole because a certain element is not registrable. In addition, separate applications and combined registration can also expand the number of trademarks that an enterprise can use.
[Yuan Zhenfu, Su Heqin: "Trademark Strategic Management? Legal Support for Company Brands", Intellectual Property Press, 2007 Edition, pp. 132-134. ]
2. Trademark use
Trademark use should be based on the development stage and brand strategy of the enterprise. For start-ups, it is wiser to use the same trademark on all products. Because the publicity resources that enterprises can invest at this stage are relatively limited, using a single trademark is conducive to concentrated publicity and rapid improvement of the trademark's popularity.
For large and medium-sized enterprises with strong strength, it is a good choice to use different trademarks according to the type of goods and the degree of differentiation. In this way, it can not only cultivate multiple well-known trademarks for the enterprise and reduce the risk of damage to the entire brand image due to quality problems in a certain product; it is also conducive to the formation of healthy competition among different business divisions of the company.
3. Trademark protection
Enterprises will encounter trademark infringement to a greater or lesser extent during their business operations. At present, the main ways to safeguard rights are administrative investigation and judicial protection. Compared with judicial protection, administrative investigation and prosecution have the characteristics of simple procedures and fast processing, but lack of finality. Therefore, combining the two methods to protect rights may be a better choice. In recent years, with the popularization and development of the Internet, online trademark infringement has become increasingly common, and the resulting damage cannot be underestimated. In this regard, companies should strengthen online infringement monitoring and promptly safeguard rights.
(3) Copyright strategy
Copyright management is very important for software development companies and requires more attention. Software companies need to pay attention to the following three points in copyright management:
1. Establish a record and registration system
Since copyright is obtained when the work is created, companies should establish records during the software development process system, register the development process, and retain original documents. In addition, for important software products, companies should promptly register copyright after development is completed. Original records and copyright registration certificates are important evidence to prove the identity of the right holder and the time when the rights were acquired in copyright infringement disputes.
2. Design anti-counterfeiting labels
In computer software copyright infringement cases, comparison of the original and defendant's programs is a necessary step to determine the infringement. In judicial practice, it is mostly completed by appraisal agencies. When the defendant does not submit the source program, program identity comparison is very complicated and difficult. To this end, companies can design anti-counterfeiting signs during the software development process, such as deliberately leaving the company's English name, embedding special symbols and insignificant errors in the program. If these anti-counterfeiting marks can be read on the defendant’s products, the court will generally determine that the defendant has copied the plaintiff’s computer software. [Yuan Jianzhong: "The Theory and Practice of Enterprise Intellectual Property Management", Intellectual Property Press, 2011 edition, page 133. ]
(4) Trade secret strategy
For enterprises, the key confidential information is mainly technical information and customer lists. Regarding the form of protection of technical information, that is, patent protection or The protection of trade secrets has been discussed previously and will not be repeated here. The goal of corporate trade secret management is to prevent the leakage of trade secrets by building a confidentiality system. Therefore, the focus of enterprise trade secret management is to build a confidentiality system.
1. Develop a confidentiality system
Enterprises should develop a trade secret protection manual to determine the scope of confidentiality objects, classification standards for confidentiality levels, permissions for personnel at different levels to access confidential information, and information file management , destruction and the liability of relevant personnel for breach of confidentiality obligations. When employees join the company, confidentiality regulations are set up in the labor contract and a confidentiality manual is issued, which is handed over to the employee for signature.
However, a confidentiality manual is not enough. Enterprises should also establish necessary physical protection measures, such as setting up confidentiality signs and access control permissions in research and development centers, and setting outgoing and copy permissions on office computers.
In short, the confidentiality system should reach a level where confidential information cannot be obtained without improper means.
2. Sign protection agreements during cooperation and exchanges
In technical cooperation, investment, financing, mergers and acquisitions, etc. where certain technical information needs to be disclosed, attention should be paid to signing confidentiality agreements with relevant parties.
3. Non-compete agreement
In order to protect business secrets, the company can sign a non-compete agreement when employees in important positions leave their jobs, but the non-compete agreement should be given to the resigned employees. Reasonable compensation and restrictions on region, industry, time limit, etc. must be fair and reasonable to avoid the agreement being deemed invalid by the court during litigation.
4. Has the spring of intellectual property rights arrived in China?
In recent years, intellectual property rights have increasingly become a hot word, not only appearing many times in important national documents, but also often used by various countries. Filed by senior officials. Taking patents as an example, in the past few years, the number of patent applications in China has been growing rapidly and now ranks first in the world. All this seems to indicate that the spring of China's intellectual property rights has arrived.
Is this really so? Taking patents as an example, behind the boom in the number of patent applications, it is an indisputable fact that a large number of authorized patents have been shelved or abandoned in advance; the amount of compensation for patent infringement is low and the rights protection cycle is long. There has been a significant improvement; for most companies, there is still a long way to go to obtain cash income through patents. All this seems to tell us that the spring of intellectual property has not really arrived yet.
Whether the spring of intellectual property has arrived, different people will have different answers. Under the new normal, the national innovation-driven strategy needs the support of the intellectual property system, and intellectual property will play a vital role in national development. In this context, instead of waiting for spring to come, Chinese companies should use their own strength to create a spring of their own. Intellectual Property