How to formulate patent strategy for enterprises

China National Intellectual Property Administration Zhang Qingkui's so-called patent strategy refers to the general plan and strategy that enterprises consciously use the weapon of patent protection to effectively improve their competitiveness under the conditions of market economy. Generally speaking, patent strategy can be divided into offensive and defensive aspects. Among them, attack refers to taking active strategies and means and trying every means to squeeze into the technical field dominated by competitors and occupy a place in it. Defense refers to building a solid patent position, not giving the other party the opportunity to effectively protect and strengthen itself, taking defense as the attack and being in a favorable position in the competition. Attack, that is, trying to destroy each other's patent positions. In this regard, the following measures can be taken: 1, trying to evade the patent of the other party, giving up or changing one or some necessary technical features in its independent claim. For example, changing the structure or composition of its patented product, preserving the process steps of its patented method or changing its process conditions to avoid infringement. This is because the general rule for courts to judge infringement is the theory of feature coverage. As long as the defendant uses all the necessary technical features in the plaintiff's independent patent claim, it belongs to infringement, even if its technical features are more than the plaintiff's independent patent claim. However, if there are few technical features that make it impossible to use the necessary technical features, or a feature is substantially different from the corresponding feature in the patent claim, it is often not judged as patent infringement. 2. Request for revocation or invalidation of the patent of the other party that cannot be evaded, and do everything possible to eliminate obstacles in progress. For example, for some basic patents such as active substances, functional materials and components, it is not easy to make some substantive changes, and its protection scope and effectiveness are particularly strong, including all manufacturing methods and application fields of patented products, which is very restrictive in further research and development and market competition. Therefore, when competitors have such patents, it is often very difficult to try to circumvent them. At this time, it is necessary to make use of the rights and opportunities provided by the patent system to the public and third parties to put forward opinions before authorization and request revocation and invalidation after authorization, do everything possible to find out where the other party's patent application does not meet the requirements of the patent law, and actively provide "shells" for examiners to use, so as to nip patent obstacles in the bud as soon as possible and clear the way for their own research and development and market opening. In addition, if it is really impossible to remove this obstacle, you can also consider spending an appropriate fee to purchase its use license. Many examples prove that the cost of introducing advanced technology is far lower than the cost of your own research and development. 3. Carry out secondary development on the basis of the patent of the other party, for example, develop new methods or new uses of patented products, and then restrict the other party in turn after obtaining subordinate patents or subordinate patents as chips for cross-licensing. This is because the scope of patent protection and whether a patent can be obtained are two different things. Even if the protection scope of existing product patents includes all manufacturing methods and application fields, it does not prevent others from researching and developing other manufacturing methods and uses that are not disclosed in their product patent documents. Moreover, new manufacturing methods and utility models made by further research and development of the basic patent can still be granted method patents or utility model patents as long as they meet the substantive conditions of novelty, creativity and practicality stipulated in the patent law. The difference is that the implementation of this method or the use of patents will inevitably lead to the infringement of previous product patents, so it needs the permission of the product patentee, so it is called a subordinate patent or a subordinate patent; On the other hand, because the method or use itself is a patent, the patentee also enjoys the statutory exclusive right to its patented technology, and no one, including the patentee of the prior product, may use its patented method without the permission of the patentee, thus forming an anti-restriction on the patentee of the prior product. Because the manufacturing methods and uses that were later developed and patented definitely have outstanding substantive characteristics and significant progress than the existing methods and uses of the product patentee, and are more competitive in the market, the product patentee will undoubtedly be interested in it, which has laid a solid foundation for cross-licensing. After the war, Japanese enterprises successfully used this patent strategy, actively carried out secondary development of foreign basic patents, and formed many peripheral patents around basic patents, thus playing a beautiful turnaround in international technology trade and effectively improving the competitiveness of Japanese enterprises. Defense, that is, to build your own patent position, can take the following measures: 1, write patent application documents, disclose as many examples as possible and make a reasonable summary, so as to be protected as much as possible, so that the other party can't bypass it and prevent the other party from infringing in disguise. The application documents mentioned here mainly refer to the specification and the claims. Because China implements the first application system, the patent right is only granted to the first applicant for the same invention-creation; Accordingly, according to the provisions of the Patent Law, after the application documents are submitted to the Patent Office, it is not allowed to add any substantial new contents. Because the original patent application documents submitted at the time of application are the basis for patent examination and infringement judgment after authorization, carefully writing the application documents is the basis and key to successfully pass the substantive examination and effectively obtain patent protection. When writing application documents, we should pay attention to the relationship between full disclosure and protection of technical secrets. On the one hand, the technical scheme of the invention must reach the level that technicians in this field can implement with the help of professional common sense to meet the requirements of full disclosure; On the other hand, if the best scheme of the invention or some details of its realization are not easy to be leaked, it can be kept as a technical secret with an extra layer of protection. However, if the best scheme is easy to be leaked or discovered, it should be made public and written as a subordinate claim to prevent selective invention in the future. Article 59 of the Patent Law stipulates that "the scope of protection of the patent right for invention or utility model shall be subject to the contents of the claim, which may be explained by the specification and drawings." At the same time, the fourth paragraph of Article 26 of the Patent Law also stipulates that "the patent claim shall be based on the specification, indicating the scope of patent protection." That is to say, only by disclosing as many examples as possible in the manual and making a reasonable summary can we get as large a scope of protection as possible, so that the other party can't bypass it and prevent the other party from infringing in disguise. 2. Be flexible when encountering obstacles in the approval process. For example, in the process of examination, the examiner often issues various notices of examination opinions, pointing out some problems still existing in the application documents. At this time, whether the notice of examination opinions can be properly answered will often have a great impact on the fate and examination cycle of patent applications. In this regard, we should pay attention to the following points: (1) Answer the questions pointed out by the examiner directly, be tit for tat, don't beat around the bush, and don't answer irrelevant questions. (2) Amend the claim appropriately and state opinions on the independent claim. (3) Answer all questions raised by the examiner comprehensively and speed up the review. (4) When several closely related inventions are applied together or the claims are too broad, so that the examiner can't question them and the application can't pass the examination smoothly, you can voluntarily give up some unimportant disputed parts, or deal with them separately, and treat the disputed inventions as separate applications to ensure that the main or important parts can get out of trouble as soon as possible. 3. Actively develop upstream products, such as active compounds, basic industrial materials or components. And cooperate with the secondary development, apply for more patents on downstream products such as preparations, equipment and devices, as well as manufacturing methods and uses, and form a dense patent network, thus firmly occupying important technical fields, leaving no room for competitors and being in an absolute dominant position in the competition. In a word, intellectual property rights will play an increasingly important role in the next 2 1 century. Strengthening enterprise intellectual property protection is the only way for China enterprises to survive and develop under the new situation. I believe that with the joint efforts of patent workers, there will be new progress and breakthrough in the intellectual property protection of enterprises in China. □ Statement on Articles and Payment This article was originally contained in electronic intellectual property rights. According to Article 32 of the Copyright Law of People's Republic of China (PRC) and Articles 2 and 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Computer Network Copyright Disputes, this website is legal. This website has prepared the corresponding remuneration according to the relevant national regulations, but it cannot be paid for objective reasons. 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