However, in the fierce competition among global peers in the integrated economy, Chinese enterprises have been in pain and bruised and have paid a heavy price despite their high spirits.
Chinese-made products cost-effective with unparalleled advantages, Chinese companies can therefore compete with the world's top companies in the market or share profits, but Chinese companies generally weak awareness of intellectual property rights, although the chain of industry to achieve a position, but many times there is no freedom to attack and retreat, in many product areas, the international manufacturers holding a large number of patents eyeing, Chinese companies are as head Hanging under the sword of Damocles, always facing the danger of patent strangulation, in the past few years, Chinese enterprises encountered difficult to heal the trauma. In the United States, Chinese enterprises encountered a lot of patent litigation and 337 investigations, and the results are unfavorable; in Europe, Chinese enterprises have been repeatedly detained by customs and prohibited exhibition: China's DVD industry suffered a 3C/6C alliance of the global siege, the industry's vitality disappeared, in 2007, a district of Shenzhen in two months, more than 30 DVD factories due to the pressure of the high amount of royalties have closed down, high-end TVs, network switches, game consoles can not enter the market. High-end TV, network switches, game consoles can not enter the market in developed countries, and even in the international electronic product exhibition, some products with high-end technological innovation because of patent infringement suspected of yet to be characterized by the seizure; many enterprises in the patent sniper overseas to pay the sky-high royalties, profits were exploited to the end. This is a local enterprise looking for overseas opportunities to encounter the embarrassing dilemma, and in the domestic patent is like a deep underground mine, patent big peep at the dynamics of industrial development, choose the opportunity to detonate, but also a single piece of compensation amounted to as much as ten million yuan huge patent litigation judgment. It goes without saying that the neglect of patent risk has led to many local enterprises to slip into the deep ravine of difficult survival. The yoke of patent is clamped around the neck to know the dilemma.
Some companies realize the crisis of long-term development, began to pay attention to the impact of patents, the development of patent risk assessment and crack/avoidance mechanism at the same time to pay attention to their own technological innovation of property rights, planning and targeted deployment of patents, to create a weapon that can be based on its advance and retreat. In order to be able to safely ride the tide of the global economy, therefore, in recent years, the number of patents of local enterprises is rapidly rising, the proportion of domestic applicants for patent applications is steadily increasing, with the improvement of intellectual property rights system and industrial upgrading of the drive, the number of domestic patent infringement lawsuits are also growing rapidly year by year, of course, in the face of fierce industrial competition pattern, patent exclusivity is not divided into the object of the national level, the patent fight is a regional fight! Of course, in the face of fierce industrial competition pattern, patent exclusivity is regardless of the target country, the patent dispute is a regional dispute, in a particular region each enterprise has to face the patent risk of all competitors, including local enterprises. More importantly, holding patents does not exclude the risk of patents, therefore, even with independent intellectual property rights should not ignore the existence of patent risk.
For many companies, a particular product is the basis for survival, and it is difficult to abandon it. On the other hand, recklessness and inevitably meet the disaster of destruction, how to assess the patent risk and effective avoidance of many enterprises is the urgent need to solve the big problem, but the assessment of patent risk in the practical operation of the difficulty is not small, on the one hand, the characteristics of the industry, the complexity of the business and the diversification of the market so that the impact of many uncertain factors: on the other hand, the patent is not a legal or technical single entity, from a single level is often difficult to find an efficient and effective solution to the problem. On the other hand, patent is not a single entity in law or technology, and it is often difficult to find an efficient solution from only one level, and the combination of the two has certain obstacles of compatibility of disciplinary ways of thinking. The risk of uncertainty, patent risk assessment is difficult to quantify, there is no certain rules to follow in the characterization, the author only with this article combined with the experience of practitioners to provide a shallow knowledge of the humble opinion, hoping to play a brick to attract jade effect.
First of all, from a macro point of view, the patent risk assessment should start from the industry level, before entering a specific industry that is, a comprehensive industrial patent survey should be carried out, in order to understand the degree of intensity of patents in the industry, the main patent holders, the industry relies on the degree of patented technology, the degree of patent impact on the industry and the degree of control, the development of various types of patented technologies and the trend of the number of patents, the trend of the decline of the number of patents. The association between industrial standards and patents, the distribution of basic patents, the patent alliance and authorization network among patent companies, etc.. The result of a comprehensive patent survey should be an important decision factor for entering the industry and choosing the entry point: after determining the entry point, the patent status of enterprises and products upstream and downstream of the supply chain also needs to be understood. In many industries, most of the operators are constrained by a small number of patent powerhouses, and it is difficult to obtain a clear competitive advantage in terms of high royalties and undetermined business positioning, being pressed at the low end of the value chain, with profits squeezed, and the breakthrough upward is difficult and costly, therefore, the assessment of patent risks before entering should not be ignored.
Secondly, from the microscopic point of view, the patent risk assessment is for specific products and specific patents, usually in the specific product development, production process should be targeted patent investigation, locking may be associated with patents, assess the potential risk, in order to determine the development of the project's trade-offs and direction, of course, does not rule out the necessity to assess the risk of patents in the product out of the following key to the necessity of patent risk assessment. The following is a review of this topic.
The following five factors should be considered in the risk assessment of a particular product and a particular patent.
The determination of infringement lies in the fact that there are disputes in the vast majority of patent cases, the same patent, the same product. Different business forms. Different industry participants in different acts and their place of occurrence, whether the conclusion of infringement is likely to be different, this paper does not provide an in-depth analysis of the application of specific principles and methods of infringement determination, but rather emphasizes several aspects that should be considered in principle in the determination of infringement, in the context of a clear patent right is valid, the judgment of infringement should take into account the following six aspects 1 specific countries / regions on the infringement of the legal norms for the determination of infringement, the patent With regional, different countries/regions in the infringement determination of standards, the same product on the same family of patents due to differences in the law to reach different conclusions on infringement is very normal, 2 whether the patent literally covers the product, this determination is usually not related to the law, the invention as an example, the specification of the revelation itself, the industry's technical terminology and the grammar of the claims, etc. will affect the interpretation of the scope of the rights, which will affect the conclusion of literal coverage 3 literal coverage of the conclusion of the patent, the patent is not covered by the law. The conclusion of literal coverage3 The possibility that a patent that does not literally cover the product covers the product equally, which involves the application of the principle of parity, and needs to consider the relevance of the prior art, the size of the difference between the patented technology and the product, etc., and the stability of the patent, if the patent has a defect that is unenforceable or should not have been granted a patent, the patent infringement will lose the basis of the determination, therefore, the stability of the patent is also a key consideration for the infringement determination in many cases. Therefore, the analysis of the stability of the patent is in many cases a key consideration in the determination of infringement, 5 Whether it is an infringement as defined by the Patent Law, such as the use of design patents, the enjoyment of the right of first use, the use of manufacturing for public welfare and non-profit purposes, and the exhaustion of rights, etc., are non-infringement, 6 Suspicion of indirect infringement (induced infringement and infringement of the *** with), the division of labor of the industry so that the same product involves a number of manufacturers, and infringement occurs due to the supply and cooperation relationship is not uncommon. The industry division of labor makes the same product involve multiple manufacturers, the infringement due to supply, cooperation relationship is not rare.
After theoretical analysis, the infringement of the situation, should consider if the patentee initiated the lawsuit, as the defendant's likelihood of losing, many infringement lawsuit is not the defendant's defeat for the end, otherwise, the infringement will not have to be resolved through the lawsuit, and there are still know that not infringing the lawsuit, the results of patent infringement lawsuit is affected by a number of factors as a defendant may take into account the factors In addition to the aforementioned aspects of a theoretical infringement judgment, should also include the possibility of the right to collect evidence and means. The amount of chips held by their own side, if they also hold a large number of patents are being implemented by the right holder, the implementation of the right holder's patented technology depends on their own patented technology, or their own patented technology compared to the significant economic value and business prospects, more market acceptance, then the two sides of the cross-licensing becomes possible, win-win drive will resolve the risk of losing the case. Therefore, it is not difficult to see, pay attention to the accumulation of patents to increase Therefore, it is easy to see that emphasizing patent accumulation can increase the ability to resist patent risks.
The impact of losing a case needs to be assessed as carefully as possible. If a right holder initiates a lawsuit and a verdict of infringement is reached, the impact can include damages, withdrawal from the market, damage to goodwill, and the cessation of production and destruction of equipment. On the other hand, if the judgment is for non-infringement or for ongoing litigation, hidden damages should be considered, such as the impact on goodwill, the drain on the enterprise's resources and the drag on its operations due to the exhaustion of the litigation process, as well as specific procedures during the litigation process, such as property damage, and the destruction of equipment. As well as the impact of specific procedures in the litigation process, such as the preservation of property or evidence, etc., for the case of damages arising from the loss of the lawsuit, should take into account the patent region, the change in product margins, the importance of the patented technology in the product, the patented technology is a product to be able to sell the driving factor and the amount of damages from previous patent litigation and licensing agreements, etc., so as to pre-assess the loss of whether the loss of the affordability of the range of
Should be Consider whether there is a backup technology available, only to compensate for the loss of the outcome of the lawsuit, the defendant's loss is generally not devastating, for the production and sales of products involved in the lawsuit, the right holder will require the discontinuation of the use of the patented technology, then, if there is no alternative technology available, the defendant will be put in a desperate situation, forced to withdraw from a particular market area, terminate the production of the product concerned. Sales and even the use, or pay a high amount of royalties, the loss of self-evident, and if you can make the product through technological innovation combined with legal analysis of the means to bypass the patent barriers in the market can replace the patented technology will not be affected by the patent or reduce the impact of the commercial operation, do not suffer the loss of insolvency to keep the post-complaint business on the way back.
Finally, after considering the above factors, if the negative conclusion of the assessment tends to be more, for the infringement of patented technology that must be implemented with great risk of infringement, we can consider the necessity of obtaining authorization, especially in the face of basic patents and patent alliances is even more so, the patent authorization, although resulting in a reduction of profits, but can exclude the danger of destruction, in order to exclude the high risk of at the same time, if the patent authorization can bring about compensatory additional benefits, then it becomes a rational choice. If the patent license can bring additional compensatory benefits while eliminating high risks, then it becomes a rational choice. It is necessary to pay special attention to is, obtain patent authorization is not obtained in the industry unimpeded pass, specific patent authorization only excludes specific patents, specific company's claims, there may still infringe other patentee's patents, which is determined by the patent's exclusive attributes, in order to make full use of the authorization cost of the input as far as possible, can be asked to authorize the party *** with the implementation of its patented technology and bring the patent risk.
The above roughly commented on the assessment of the risk of patent infringement should be considered on some factors, in fact, limited by the one-sidedness of the information and qualitative analysis of the cumulative uncertainty, to accurately assess the risk of patent is indeed very difficult, but I believe that by considering the above aspects, you can tend to be more reasonable and effective in avoiding patent risks.