Patent is the main source of infringement risk.
(a) the published patent technology
After the completion of a new invention-creation, the inventor or relevant unit generally applies for a patent in time. Upon examination by China National Intellectual Property Administration according to law, those who meet the requirements will be granted a patent right, and the technical scheme and protection scope of the patent application will be made public to the public in the form of a patent announcement. The public can know the relevant technical information and the scope of protection. Once an invention is patented, it is protected by the patent law. Without the permission of the patentee, no one may manufacture, use, import, sell or promise to sell patented products or use patented methods for the purpose of production and operation, otherwise it will bear corresponding legal responsibilities. If enterprises don't pay attention to patent announcements, don't search patent documents in related fields in time, or miss inspection in the search process, there is a risk of infringement. It is a low-level mistake to infringe on the patented technology published by other people's existing publications. This kind of low-level mistake should not happen in today's society. Now is the Internet age, and information technology is very developed. A person can know what is happening in the world without leaving home, and can freely search domestic and foreign patent documents, read the relevant patent specifications and claims in detail, clearly understand the technical content and protection scope of patents, and understand the legal status of patents.
(2) undisclosed patented technology
There is a period of time from filing a patent application to publication in China National Intellectual Property Administration, which is usually 18 months, or the applicant requires early publication, and the time is shorter. During this period, the patent application technology is in the process of examination and approval in China National Intellectual Property Administration, and the relevant information is not known to the public. Even if the patentee searches carefully, it is impossible to retrieve it. The undisclosed patent application technology has potential risks to others. Once these technologies are made public in the future, they will be temporarily protected, and the applicant has the right to ask the person who implements the technology to pay remuneration. Once the patent right is obtained, it has the exclusive right. Others, without the permission of the patentee, implement the technology within the scope of patent protection for the purpose of production and operation, even if they implement a technology project independently developed by themselves, it also constitutes patent infringement, except those who enjoy the right of first use.
(3) Foreign patent applications with priority.
China is a member of the Paris Convention for the Protection of Industrial Property. According to the Paris Convention, applicants from all member countries enjoy national treatment. If the applicant applies for a patent in any other member state, and the application for a patent for invention is within 65,438+08 months, and the application for a patent for utility model and design is within 65,438+02 months, the date of application shall be based on the date of application first filed abroad. This brings a kind of risk to the enterprise. Implementing a technology that did not apply for patent protection in China at that time may also lead to infringement disputes in the future.
(four) the different rights of the earlier patent and the later patent.
After a new technology is patented, the scope of patent protection is determined. Other innovations based on this are inventions, and you can apply for and obtain patents. The earlier patent is generally called the basic patent, and the later patent is called the subordinate patent. The implementation of the latter patent depends on the former patent, and the implementation of the former patent is subject to the latter patent. In this case, it is generally mutual negotiation and cross-licensing under certain conditions, otherwise, there is a risk of infringement.
(5) It is equivalent to patented technology.
Before the implementation of a technical project, the enterprise did not find the same patented technology in advance after the search, but if the same effective patented technology is compared, the basically same function is realized by basically the same means, and basically the same effect is achieved, and this basically the same means can be obtained from the patented technology by ordinary technicians without creative labor. Then, it may be identified as equivalent to patented technology, and there is a risk of infringement.
(6) Regionality and timeliness of patents
The protection of patents is regional and time-sensitive, and the laws of various countries only protect patents approved according to their own patent laws. The duration of patent protection varies, and some countries can even apply for "extension" of patent protection in some fields. There are also risks in exporting patented products to different countries and regions. Some countries and regions may be peaceful, while others have infringement disputes.
Measures to reduce the risk of patent infringement
Establish a reliable foundation of rights
The production and operation activities of enterprises should be based on reliable rights. First, it is carefully made and operated based on the existing technology, which can be used to defend the infringement charges. Second, it is based on scientific and technological achievements with legal rights, including patents, patent applications, computer software, technical secrets, layout design of integrated circuits, new plant varieties and so on. Third, on the basis of obtaining legal authorization, develop good technical projects and obtain intellectual property protection, and respect others. If enterprises are optimistic about such projects, they can obtain legal authorization through licensing trade.
(2) Apply for a new invention patent in time.
In the field of patents, most countries in the world implement the first-time application system. With the achievements of invention and creation, even a little meaningful improvement, we should apply for a patent as soon as possible to protect our rights and interests. If the patent application for a completed invention is postponed, it is possible that others will apply for a patent first. In this way, the rights and interests will be lost and the risk of infringement will increase. However, it is also desirable to protect some technologies that others are not easy to master through market purchase and reverse engineering.
(3) Tracking and consulting patent documents
The information of patent application and authorization shall be published in the patent gazette. Tracking and consulting patent announcements at any time can grasp the latest technical trends in this field, effectively reduce the risk of infringement, and is also an important means to enhance the effectiveness of enterprise R&D activities. Anyone can log on to China National Intellectual Property Administration's website and omit and consult patent information for free.
(4) Evidence of reservation of the right of first use.
According to the second paragraph of Article 63 of the Patent Law, manufacturing and using the same product before the patent application date, using the same method or making necessary preparations for manufacturing and using, and continuing to manufacture and use only within the original scope, does not constitute infringement. This kind of legitimate rights and interests of enterprises are generally called preemptive rights. In practice, if an enterprise wants to establish its priority status, it must give a series of evidences. Such as the project documents of new technologies. Meeting minutes, engineering design drawings, invoices for purchasing related raw materials and equipment, production plans, etc. Enterprises should keep these evidences, which are the historical records of their own technological development process and will play a huge role at critical moments.
(5) Technical consultation
When the technical project to be implemented may fall into the effective patent protection scope of others, and the enterprise is not sure, it may lose development opportunities if it does not move forward, and there will be infringement risks if it moves forward. In this case, the enterprise can make a consultation request to the consulting institution or judicial authentication institution recognized by the court or designated by the judicial administrative organ. These institutions have a group of experts who know the professional technology in this field and are familiar with the law. After careful comparison by these experts, the corresponding institutions will issue consultation reports. Although these consulting reports are only a kind of consulting opinions and are not binding, they also play an important role and often become important evidence to judge whether there is infringement. Doing this step well in advance can reduce the risk of infringement and make the work situation more active.
suggestion
Enterprises are independent subjects in the market. Enterprises should establish several basic concepts in their development. First, the leap-forward development of enterprises mainly stems from technological innovation. Second, any advanced technology is a small stage achievement in the long history of human development. Third, we should protect our intellectual property rights by legal means. Fourth, we should respect the intellectual property rights of others. Large and medium-sized enterprises should establish their own early warning mechanism and try their best to resolve possible infringement disputes before they are formed. When it is found that other people's patented technology is very important to this enterprise, it is necessary to seriously study the effectiveness and effective protection scope of other people's patents. For truly advanced technology projects with market prospects, you can sign a licensing contract to obtain legal authorization, or you can improve the existing patented technology, establish a series of related peripheral technological achievements of enterprises, apply for patents and obtain legal protection, and on this condition, negotiate with the basic patentee in a friendly way to obtain cross-licensing.