Application And Planning of Enterprise Patent Strategy (Part-Two)

2.1. Basic Strategy of Patent

The starting point of implementing the patent strategy includes three basic aspects:

First, there is no patent without invention and creation, and there is no patent strategy;

Second, it is not that any technological achievement can be worth hundreds of times and monopolize the market after applying for a patent. The key lies in whether the enterprise has accurately selected the development goal;

Third, only based on the strength and foundation of the country and the enterprise, can we choose an appropriate technology development strategy to accelerate the transformation of resources into products or services through technology. It is impossible to obtain economic benefits if there are patents without creative use.

In the initial stage of patent strategy, it includes incentive invention strategy, development target selection strategy and technology development strategy:

2.1.1 Incentive invention strategy and tactics: incentive invention and creation requires the cooperation of national strategy and enterprise strategy. Japan is the most typical and successful national innovation strategy. A series of measures can be taken to encourage the invention and creation strategy at the enterprise level, such as:

2.1.1.1. Establish a reasonable reward system;

2.1.1.2Increase R & D investment;

2.1.1.3 Establish a system of encouraging rationalization suggestions in enterprises;

2.1.1.4.Establish R & D rules and regulations in the era of patent strategy;

2.1.1.5. Strengthen the introduction of technology at home and abroad, especially from domestic universities and research institutes, and do a good job in the patent management of the cooperative development of industry, University and research.

Mitsubishi Corporation of Japan’s lifetime multiple awards for employees’ inventions are worthy of our reference and reference: after applying for a patent and before being approved, as long as it is a good invention, whether it is approved or not, Mitsubishi Corporation will give “outstanding invention commendation” and award bonuses and certificates. If this invention is patented and implemented within the company, Mitsubishi will give the inventor “performance compensation”. At least 30000 yen per year will be given when it is implemented. If the invention is licensed to other companies for implementation, Mitsubishi will also allocate a certain proportion as the inventor’s “performance compensation” according to the rights obtained. If an invention is implemented inside and outside the company at the same time, the inventor’s “performance compensation” can get up to 1million Japanese dollars a year. The inventor can still receive “performance compensation” after leaving the company. Even after death, his successor can renew the patent until the company no longer uses or permits others to use the patent. In addition, Mitsubishi also has a “registration recognition” for the cumulative number of patents. When the number of domestic patents obtained by employees reaches a certain number, a certain amount of bonus will be given. The presidents of each factory, business headquarters and Mitsubishi Corporation also have “workshop and commendation”, “minister commendation” and “President commendation”, and the reward method is decided by the factory director, Minister and president.

 

2.2. Target Selection Strategy:

The patent strategy of the enterprise in the target selection strategy stage is mainly manifested in the use of the intelligence value of patent documents. Through patent analysis, we can accurately understand:

2.2. 1.The growth stage of existing technology;

2.2. 2.Development trends and possible application fields of new technologies;

2.2. 3.Technological development trends of the industry;

2.2. 4. The most competitive technology field;

2.2. 5. Research and development trends of competitors;

2.2. 6.Possible life span, potential market and economic value of new products.

When choosing the target of technology development, the market prediction of some groundbreaking patented technologies has a unique law. For those unprecedented technologies and products, consumers know nothing about them and cannot conduct market research and prediction. Therefore, for the development goals of patented technology, some mainly rely on technology prediction; Some can only open up new markets by publicizing their real value to potential buyers after the products are made; And because the prediction work itself contains certain uncertainties and deviations, which may bring risks, which will affect the success or failure of the enterprise. Therefore, inventions, ideas or suggestions may be put forward from the grass-roots level, or may be put forward after the discussion of the meeting attended by the heads of various units and experts, but the final decision is still the top leader of the enterprise.

 

2.3. Technology Development Strategy.

There are roughly two kinds of technology development strategies. One is the pioneering technology development strategy represented by the United States, and most of its achievements belong to basic patents; The other is the follow-up technology development strategy represented by Japan, whose achievements mostly belong to peripheral patents such as improvement patents and application patents. The latter has the advantages of high starting point, low cost and low risk.

The current technological level of Chinese enterprises is still backward in most fields. Therefore, we should adopt a follow-up strategy, closely follow the R & D work of foreign counterparts, timely understand the R & D trends and the latest achievements of similar foreign enterprises, timely introduce new technologies, digest and absorb them as soon as possible, and then make improvements and independent innovation on the basis of introduced technologies, develop better technologies or products, and apply for patents in a timely manner, Protect your technological achievements with the law.

 

2.4. Patent Application Strategy And Tactics

Whether the technology developed by an enterprise is applied for a patent or used as a technical secret or in other ways depends on the needs of the enterprise’s patent strategy and business strategy. Usually, an enterprise should establish a system, which consists of the management, technology, law, sales and other personnel of the enterprise to evaluate the invention and creation made by the enterprise and decide whether to apply for a patent. Once the application is decided, the countries in which the patent is applied for should be analyzed. Generally, the “market-oriented” application strategy is adopted, that is, priority is given to countries with the largest market or the largest population to apply for patents. However, if inventions belong to high-tech fields, such as microelectronics and genetic engineering, only a few enterprises can produce such products. In this case, the “market-oriented” application strategy may not be the best. At this time, we should consider the “production oriented” application strategy, that is, apply for a patent in the country where the competitor is engaged in production and operation. In case of infringement, the patentee can take legal means to seize the infringing product in the origin, regardless of the country in which it will be marketed. For countries with highly developed industries and broad markets, these two strategies can be applied at the same time. In short, enterprises should consider applying for patents in countries with potential markets or potential competitors to protect their market interests and competitive advantages in these countries.

The patent application strategy mainly answers three questions:

2.4.1. Should all inventions be patented?

2.4.2. When to apply for a patent?

2.4.3. What kind of patent to apply for?

2.4.3.1. Right choice. Some technological achievements do not need to apply for patents, and it is more beneficial to protect them with know-how, such as the “Coca Cola” beverage formula in the United States, which has been the technological secret of enterprises for more than 100 years; Some inventions can apply for patents for part of the technology and keep the other part confidential as technical secrets; Or cover up some technical know-how in the patent application documents.

2.4.4.Choice of application time:

2.4.4.1.For basic inventions, patent applications are generally filed after their application research and peripheral research are generally mature. Prevent other enterprises from making continuous improvement research on the basis of basic inventions, or preemptively applying for invention patents, resulting in the blockade and protection of their own basic inventions;

2.4.4.2. If there are many competitors, or the market demand is large, or the technology is easy to be imitated, it should apply for patents as soon as possible;

2.4.4.3. For the leading technology of the enterprise that is not easy to be imitated, you can apply for a patent when your competitors are about to catch up. On the one hand, it extends the protection period, on the other hand, it also avoids the premature disclosure of technology and gives your competitors an opportunity.

2.4.5. Selection of application type:

2.4.5.1.Apply for basic patent (basic patent strategy). Basic patent is an invention with high originality. It has the possibility of wide application and the prospect of obtaining significant economic benefits. The basic patent has the following characteristics:

1. Competitors cannot bypass basic patents and imitate;
2. In practical application, it also needs to solve a series of technical problems, which can generate a large number of related patents;
3. The development cycle is long and the cost is large, which requires the support of social and technological forces;
4. There are great prospects for development. Some basic inventions will have a fundamental impact on industrial activities, and even trigger a new industrial revolution. To apply for a basic invention patent, we need to attach great importance to peripheral patent protection before and after application, and form a patent protection network; For the technology that produces the basic patent, we should further store the technology and obtain the improved patent, so that it can still play a protective role after the expiration of the basic patent.

2.4.5.2.Apply for peripheral patents (peripheral patent strategy), which is also known as improvement patents. Peripheral patent strategy is the best strategy for Japanese enterprises. The so-called peripheral patent strategy refers to the strategy of using many different patents with the same principle and around the basic patent to strengthen themselves and confront the basic patentee when they can’t protect themselves well only by relying on the basic patent. Deploying improved patents and downstream patents around core patents can help the enterprise obtain the interactive authorization of core patentees. For example, Taiwan Foxconn, Taiwan Hon Hai and South Korea SamSung have also created a reliable trump card by tracking the core technology of foreign enterprises and deploying a large number of peripheral patents.

1. In the countries or conditions of the first application system, when it is already known that the opponent is also developing the same technology project and is close to success, it will first widely control the core technology with the basic patent, then continuously and gradually apply for applications and improve patents around it, and finally form a patent network centered on the basic patent;
2. Try to apply for basic patents and peripheral patents at the same time, so as to avoid the competition of other enterprises applying for peripheral patents after the disclosure of basic patents first;
3. When the company’s products cannot bypass other people’s basic patents, it can improve the basic patents to produce applied inventions, apply for peripheral patents, and form a wall (patent protection network) around the basic patents, so that the basic patentees lose room for activity in this field, make them prone to infringement, force the basic patentees to give up competition, or propose patent license negotiations to the company.

2.4.5.3. When applying for defense patents, although some inventions are temporarily not implemented by the enterprise, they should be applied for defense patents as a basis for technical reserves or future implementation of updated inventions, so as to avoid being preempted by other enterprises and forming restrictions on themselves.

2.4.5.4. Apply for confused patents. When the competition among peers is extremely fierce, in order to prevent competitors from clearly mastering the technological development direction of the enterprise, they deliberately apply for patents for some technologies that are not required by the enterprise, so that competitors cannot track their own development. You can also hide your true identity in the “assignee” column of the patent. This is the usual competitive strategy of foreign companies. Many large western enterprises often use more than 100 names as the licensors of their own patents, and some companies even use more than 300 names to apply for patents for their own technologies. For example, Aventis has more than 29000 patents, of which only about 1% of the patents contain the word Aventis in the licensors. These patents secretly deployed under other names make competitors unable to understand their real strength, which is equivalent to burying some patent mines.

 

2.5. Patent Utilization Strategy

The patent utilization strategy includes three aspects: the utilization of the patents applied for and obtained by the enterprise, the utilization of the patents of other enterprises, and the utilization of the patents of the enterprise by other enterprises. The selection, application and combination of specific strategies should scientifically analyze the enterprise scale, enterprise type, enterprise performance, enterprise reputation, enterprise technical strength, enterprise brand strength, enterprise information ability, enterprise development strategy and other factors of the enterprise and its competitors or partners, and flexibly select and implement them in practice.

2.5.1. The patent monopoly strategy does not grant license to enterprises in any country, and only pursues the exclusive interests of patent enterprises. However, the enterprise should be able to bear the risks of developing the market and have the conditions for investment.

2.5.2. License implementation strategy: license other enterprises to implement their own patents, and charge a certain fee. This strategy is adopted when the enterprise unconditionally implements it.

2.5.3. Licensing strategy. When its own production capacity is far from meeting the market demand, it is a strategy to license other enterprises to use its own patents and charge a certain use fee.

2.5.4. The strategy of combining patents with products. Enterprises holding basic patents allow other enterprises to use their own patents, but as a condition of exchange, impose their own products on each other to improve their position in the market competition.

2.5.5. The strategy of combining patents and trademarks. After the goods are put on the market, for greater interests, patents and related trademark rights can be bundled together for transfer or licensing. Trademarks play a great role, but in order for trademarks to gain a foothold in the market, it takes a certain amount of time and investment. In order to reduce the advertising investment of trademarks, we can adopt the strategy of compulsory use of trademarks as the exchange condition for the use of patent rights.

2.5.6. Patent investment strategy: invest in shares with patented technology, gradually establish joint ventures or joint ventures with local capital in various countries, and use the patented technology of the enterprise in the company, so as to control it. DuPont in the United States is good at adopting this strategy.

2.5.7. Cross licensing strategy. With the strengthening of the development trend of technology complexity and compounding, even large enterprises cannot monopolize technology. Therefore, there is a strategy of bringing their own technologies closer to each other and signing cross licensing contracts with mutual patents, thus forming joint technological advantages. In addition, when the technology of other enterprises in the same industry is very close, and even the ownership of power is complex, in order to prevent confusion, cross licensing strategy can also be adopted. It can be the exchange of similar technologies or the exchange of different technologies to make up for their own weaknesses.

2.5.8. Patent Cooperation Strategy: enterprises cooperate with each other by taking out the patent rights owned by each other, which is a strategy of collaborative cooperation. Most of them appear in the form of production cooperation to prevent patent disputes.

2.5.9. The strategy of introducing patents. The enterprise does not engage in technology development itself, but specially introduces the excellent patented technology of other enterprises.

2.5.10. The patent buying strategy is to buy all the patents of competitors, so as to achieve the strategy of monopolizing the market. The purpose of buying patents is not limited to the introduction of technology, but ultimately to monopolize the market. The patent buying strategy should be enough, otherwise it may violate the anti-monopoly law.

2.5.11. Patent sale strategy: when the enterprise’s patents are idle and become the stock of virtual value or low-value assets, the patent rights can be sold as ordinary commodities to achieve the purpose of revitalizing the enterprise’s capital.

2.5.12. Patent retransmission strategy: both countries and enterprises can adopt patent retransmission strategy.

It refers to the strategy that a country or an enterprise digests and absorbs the patents of other countries or enterprises after introducing them, and then innovates them, and sells the innovated technology to the original patent exporting country in the form of patents.

2.5.13. Strategy of combining patents with standards.

The United States spends more than $700 million a year on research and the development of technical standards. Most of these standards are bundled with a large number of U.S. patents. On the contrary, China spends only more than 80 million yuan a year to study and formulate technical standards. Since China issues about 4000 technical standards every year, the research and formulation cost of each standard is only about 20000 yuan. At present, many developed countries, multinational corporations and industrial alliances strive to upgrade their patented technology to the standard in order to obtain the maximum economic benefits. “Technology patenting, patent standardization, and standard monopoly” have become the new rules of the game of international competition under the condition of knowledge economy. The essence and feature of the standard is the intellectual property rights of technology in the technical system. Due to the regional and exclusive nature of patent rights, once this standard is popularized, it will form a certain form of monopoly, especially in terms of market access, it will exclude products that do not meet the standard, and only regard products that meet its own standards as legitimate, so as to achieve the purpose of excluding dissidents. This is the key to the relationship between technical standards and intellectual property rights.

We should be in line with the current international technical standards and the rules of the game of intellectual property policy, and formulate the best scheme for the combination of our own technical standards and intellectual property policy. Of course, China has also begun to invest heavily in research and development of technical standards in some major areas. For example, China has implemented the standard strategy in three fields (digital TV, EVD and plasma display screen), and Tsinghua University and Shanghai Jiaotong University have received more than 300million yuan of national funding for the research and development of technical standards for digital TV; In the field of laser disc players, the Ministry of information industry of China has provided strong support for the research and formulation of EVD technical standards of Beijing Fuguo company; In the field of plasma display screen, Southeast University of China has received great support. In recent years, China has also published encryption standards for wireless communications.

In the process of formulating the above technical standards, patents of Chinese enterprises, especially core patents, should be bound. The measures to implement the patent strategy in the standards include: striving to bring its own patented technology into the standard system; Establish an intellectual property alliance to participate in the formulation of standards; Appropriate use of technical barriers such as patent standards. Phillips established the “system standard licensing department” as early as 1998, which is responsible for the management of technical standards and patent licensing, forming a special package of patent licensing with its own enterprise characteristics.

 

2.6. Patent Defense Strategy

Patent improvement in other enterprises or patents of other enterprises hinder the enterprise. In order to protect the enterprise from losses or minimize the losses suffered by the enterprise, it is necessary to adopt a patent defense strategy:

2.6.1. Patent map strategy: in the stage of selecting the development objectives of patent technology, we should make full use of patent documents to make patent maps and other tools, analyze and understand the patents of other enterprises, and guide product development in the direction of not infringing others’ patents. Then, we should pay close attention to the trends and recent progress of patents of other enterprises, and take this work as our daily work;

2.6.2. The strategy of document disclosure, when it is not necessary to obtain the exclusive right, but if it is inappropriate to be preempted by other enterprises to apply for a patent, you can preemptively publish the technical content in the magazine. Although you failed to obtain a patent, you also achieved the purpose of preventing other enterprises from obtaining a patent;

2.6.3. Objection interference strategy. For other enterprises applying for patent rights, they can take regular obstruction activities, raise objections, and request the Patent Reexamination Board to declare invalid. In the patent infringement cases accepted by Chinese and foreign courts, and in the 337 cases accepted by the U.S. International Trade Commission, the vast majority of defendants will counterclaim that the other party’s patent is invalid. In these cases, a considerable number of patents will be invalidated.

For example, an umbrella making patent document in Taiwan constituted a prior technology and was missed by the patent examiner in Chinese Mainland. For the subsequent infringement litigation, the strategy of counterclaim against the invalidation of relevant patents has been successful. In Chinese Mainland, the reexamination board of the State Patent Office accepts about 4000 patent invalidation cases every year, of which about 2000 will be declared invalid. In other words, half of the millions of patents issued by the China Patent Office may be overturned by foreign patents, journal papers from various countries, and other facts and rules. It is very necessary for all kinds of enterprises to improve the quality of their own patents through commercial retrieval and analysis, or to understand the lethality of others’ patents. In fact, patent invalidation requests based on “patentability requirements” such as creative requirements, practical requirements, written description requirements, enforceability requirements, and implementation requirements also have a great chance of winning. Some patent analysis companies in Britain and the United States often deeply process patent documents, even non patent documents, to help enterprises win invalidation cases more smoothly.

For example, Window in company of the United States processes the original patent documents according to its own “parallel search” strategy to help enterprises find similar technologies. Many inventions and products often have a relatively unified name after the industry is mature. Before that, their names were very diverse. Some core electronic accessory inventions have hundreds of different names in the patent documents. Only the above unified name is used to implement “subject word search”, People simply cannot retrieve all of the unified technology topics, and even miss the main prior technologies (included in patent documents and non patent documents). When it is for foreigners’ patent applications in China, we should try our best to delay the approval of patents by the patent office. Japanese literature reports that it is not surprising that Japan has delayed the approval of the U.S. patent application in Japan for 10 to 14 years. The most typical is that Japan delayed the semiconductor patent application of Texas Instruments for 30 years.

2.6.4. Objection access to technical information strategy, obtain more technical information with objection, further study the basic invention for which others apply for authorization, make more progressiveness improved invention, or make superficial changes to the basic invention, apply for a large number of peripheral patents, force the other party to cross license, or form a confrontation situation.

2.6.5. Peripheral patent strategy: develop improved patents with better quality based on the authorized basic patents of competitors, or apply for a large number of peripheral patents.

2.6.6. Bypass the patent right strategy, bypass the patent right of the other party, and develop non conflicting technologies.

2.6.7. The strategy of losing the right. When it is impossible to bypass the other party’s patent right, we should carefully study the other party’s claim to see whether the enterprise’s products are within the protection scope of its claim. If not, we should provide proof.

2.6.8. First use right strategy. If the company’s products are within the protection scope of the other party’s patent rights, it can propose its own first use right.

2.6.9. Introduce, buy, and obtain the patent strategy of the implementation license, introduce, buy, or obtain the patent implementation license of the other party.

2.6.10. Expiration use strategy. Some basic patents cannot be broken through. If the basic patent expires soon, it can be used after expiration.

If the patented technology of the enterprise is infringed by competitors, the following measures should be taken: warning the infringer; Require the other party to sign a patent license contract or a patent transfer contract; Expose the infringement through the news media; Require the other party to pay damages; Request the patent administration authority to handle it; Bring a lawsuit to the people’s court.

 

2.7.Patent Search Strategy

It is very important to pay attention to the new development in the field of research and development technology and the collection and analysis of new information in the field of technology, especially patent information, in the process of patent strategy implementation.

2.7.1. It is helpful for researchers to obtain the latest patent technology information, adjust the research direction and avoid repeated research;

2.7.2. It is conducive to inspire researchers’ innovative ideas and shorten the research and development time;

2.7.3. It is conducive to mastering the technological development of competitors, taking corresponding countermeasures in time, and avoiding infringement of others’ patent rights.

Through tracking and investigating the development trend of technology, and constantly adjusting its patent strategy implementation plan according to the new situation, the implementation of the patent strategy is more effective, so as to achieve the goal of the patent strategy. Patent documents are the media that embodies the fundamental purpose of the patent system. They disseminate patent information, promote scientific and technological progress, and provide reference information for economic and trade activities. They are the basis for the legal protection of patents and the basis for patent agencies to approve patents. It can be said that patent documents are the treasure house of human knowledge and the most novel, systematic, complete and standardized source of technical information. Some people compare patent documents to the memorandum of world science and technology and the Encyclopedia of technology. Compared with other scientific and technological documents, patent documents have the following characteristics:

2.7.3.1. It has a wide range of contents. The patent literature records an extremely wide range of technical contents and technical scope, integrating technical, legal and economic information. It is a strategic information resource with a huge number and wide content. 70% to 90% of the invention achievements in the world only appear in patent documents, not in magazines, papers, conference reports and other media. Due to the regional nature of patents, and the vast majority of patent documents in the world can be used free of charge, for example, in Japanese patent applications, only 60% of the applicants request to be disclosed, only 50% are authorized, and only about 2/3 of the protection period is completed. The proportion of Japanese obligees applying for patents in China is also very low, far less than 10%. Therefore, most of the patented technologies in Japan can be used free of charge in China. By making good use of patent documents, people can save 60% of research and development time and 40% of research and development funds.

2.7.3.2. The report speed is fast, and the patent literature spreads the latest technical information. Most countries in the world implement the principle of first application. For inventions with the same content, the patent right is granted to the first applicant. Therefore, inventors usually strive to file patent applications first. In countries such as the United Kingdom, Germany, Japan, China and other countries that implemented early disclosure, the Patent Office published the specification of the invention 18 months from the date of application, which greatly accelerated the process of technical exchange. The same invention appeared in patent documents 1-2 years earlier on average than in other media.

2.7.3. 3.The system is detailed and practical. The format of patent documents is unified and standardized, with a unified classification system, which is convenient for retrieval, reading and informatization.

 

2.8.Emergency And Early Warning Mechanism for Patent Protection

Emergency and early warning of enterprise patent protection refers to that enterprises respond in time to sudden patent disputes and issue warnings in advance of possible patent disputes, so as to safeguard the interests of enterprises and minimize losses. Establishing an emergency and early warning mechanism for patent protection is an important part of the implementation of patent strategy. The establishment of enterprise patent emergency and early warning mechanism needs perfect patent information resources and experienced professional technicians and legal personnel. It is suitable for China’s national conditions to centralize patent information resources and human resources and establish national, provincial, autonomous region and municipal patent emergency and early warning institutions to provide consulting services for domestic enterprises. In addition, the government should encourage and attract patent intermediaries to enter enterprises, help enterprises improve their patent emergency and early warning capabilities, and formulate corresponding regulations.