Problems that should be paid attention to in intel

2022-10-19
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Since the reform and opening up, China's small and medium-sized enterprises have developed rapidly, and their status and role in the national economic and social development are increasing. A deep understanding of intellectual property protection will greatly promote the development of small and medium-sized enterprises

1 current situation of small and medium-sized enterprises in China

according to the official statistics before China's accession to the world trade organization, the small and medium-sized enterprises registered in the national industry and Commerce account for 99% of the total number of registered enterprises. The total industrial output value, sales revenue and realized profits and taxes of small and medium-sized enterprises account for 60%, 57% and 40% of the total respectively; Small and medium-sized enterprises in the circulation sector account for more than 90% of retail outlets in the country. Small and medium-sized enterprises provide about 75% of urban employment opportunities. More than 60% of the total export volume is provided by small and medium-sized enterprises

after China officially became a member of the WTO in December 2001, China's small and medium-sized enterprises have changed their industrial competitive advantages under the regulation of the market under the impact of economic globalization and the wave of knowledge economy. The plastic parts around knowledge-based engines are the most demanding right protection problem, which has become an important problem that small and medium-sized enterprises have to face in the further development process

the author summarizes many problems in the intellectual property protection of small and medium-sized enterprises from the practice of intellectual property work in recent years, and puts forward countermeasures and suggestions in order to help relevant enterprises

2 main problems of intellectual property protection of small and medium-sized enterprises in China

2.1 not knowing their own intellectual property rights

not knowing their own intellectual property rights will cause unnecessary losses to small and medium-sized enterprises, and the number is large. Most small and medium-sized enterprises are relatively small in scale and weak in capital and technology. Because the protection of intellectual property requires a certain amount of investment, especially in patents. Some enterprises think it is unnecessary to apply for patents, and even voluntarily give up the legal protection of independently developed technologies; There are also some small and medium-sized enterprises, who have a certain awareness of intellectual property protection. After applying for several national patent authorizations, they began the so-called "rights protection action" in the market, and the results were met with obstacles everywhere. Finally, complain that the patent is useless and no longer apply. When suffering from patent infringement or other companies charging fees in the name of patents, small and medium-sized enterprises can only be slaughtered

for the case of not applying for a patent, I don't want to repeat the importance and significance of patents to enterprises here. Through the analysis of two cases below, I hope to remind enterprise managers who have failed in the market rights protection or are about to carry out patent market rights protection actions to pay attention to two aspects

(1) the difference between the content of patent document protection and the expected content of protection

after the enterprise has obtained a new solution superior to the existing technology through research and development, the seemingly simple process of applying for a national patent needs to consider many aspects. In this process, a little carelessness will make their legitimate rights lost. The loss of such rights includes the non authorization of patents. However, for enterprises, the more serious consequence is to obtain authorization, and the scope of patent authorization is smaller than the enterprise's expectation. Patent right is a right granted by law, and its scope should be consistent with that recorded in the patent documents, rather than the scope imagined by the enterprise. The following case is the real situation of Xie Wenwu, who is called "the first person to guard against theft"

Xie Wenwu, who is engaged in the business of communication equipment, suffered from loss. Xie Wenwu, who was on the verge of bankruptcy, was determined to solve the problem of theft. After nearly two years, we finally developed the anti-theft loss reporting technology. On December 26th, 2000, Xie Wenwu submitted a patent application to the State Patent Office and obtained the invention patent authorization entitled "implementation method of automatic invisible dial loss reporting". In order to make it industrialized, Xie Wenwu then signed a contract with an enterprise for the uniform stress of each sizing block before the general implementation of the allowable adjustment level with a royalty of 100000 yuan. At the end of 2001, three "intelligent anti-theft" models were successively put on the market and were popular with consumers

In 2004, Xie Wenwu learned about the anti-theft advertisements of Shenzhen TianShiDa, Qingdao Haier and Hangzhou Dongxin. After the operation of physical objects, Xie Wenwu believes that the above enterprises are suspected of infringing their patent rights. After communication, Shenzhen TianShiDa signed a patent general implementation license contract with Xie Wenwu and paid a royalty of 100000 yuan, while Hangzhou Dongxin paid a royalty of 50000 yuan. However, the communication with Haier has not made substantial progress, and the two sides finally went to court. Through the court trial, it was found that in order to obtain a patent, Xie Wenwu made a commitment to limit the scope of protection of his patent claims by means of a written statement at the stage of patent approval, clearly excluding the situation that illegal users cannot normally use from the scope of his patent protection, and thus obtained a patent right

through organizing all parties in court to conduct an inquest on Haier's intelligent anti-theft method accused of infringement, which was invented by American scientists in 1931, the results show that in terms of technical characteristics, Haier's intelligent anti-theft method accused of infringement and Xie Wenwu's invention patent have the essential differences between illegal users and invisible dialing and explicit dialing: that is, when the detection data or number of Xie Wenwu's patent are inconsistent, When it is used normally, it will automatically dial invisibly according to the set function parameters. However, Haier's intelligent anti-theft method cannot be used normally after inserting an illegal user card, and it will dial explicitly within a predetermined time. Xie Wenwu believes that the situation that illegal users cannot normally use is the deterioration of their invention patents, so it should be recognized that the intelligent anti-theft method in Haier is equivalent to the technical characteristics of its invention patents. According to Xie Wenwu's written statement at the patent examination and approval stage, Xie Wenwu obtained the patent right only when he clearly excluded the situation that illegal users could not normally use from the scope of patent protection. Therefore, in the infringement lawsuit, Xie Wenwu's claim is a repudiation of his statement at the patent approval stage, and the court should not allow it

therefore, due to the essential difference in technical characteristics between the patent claimed by Xie Wenwu and the intelligent anti-theft method of Haier, the alleged infringing product, the intelligent anti-theft method of Haier, does not fall within the protection scope of the invention patent enjoyed by Xie Wenwu, and Haier does not infringe the patent right of Xie Wenwu

it is not difficult to see that Xie Wenwu believes that the protection scope of the invention patent named "implementation method of automatic invisible dial loss reporting" is not completely consistent with the protection scope recorded in this patent document. The early patent authorization and the settlement with Shenzhen TianShiDa made Xie Wenwu misunderstand the scope of his patent protection, so that he mistakenly launched a patent infringement lawsuit against Haier. It is suggested that the managers of small and medium-sized enterprises with patents examine and evaluate their patent rights, and clarify the scope of rights conferred by the law is the basis for starting the work of safeguarding rights

(2) the protective and striking effects of patents

some enterprises that have obtained patents are vulnerable to reports. They believe that obtaining patents can attack competitors, protect their patent rights, and obtain high compensation. I think: for the obligee, the self-protection effect of patents is stronger than the blow effect. This problem is illustrated by the case between Huawei and Cisco

in January 2003, Cisco said that it formally filed a lawsuit with the federal court for the Eastern District of Texas for Huawei's illegal copying of software and infringement of patent rights. This is the first time that China's top 500 overseas technology enterprises have filed a large-scale lawsuit against China's well-known local high-tech enterprises for infringement of intellectual property rights after China's accession to the world trade organization. Huawei responded positively by applying for patents to prove that its products did not plagiarize Cisco's intellectual property rights and that its technologies were created by R & D personnel through hard work. The case finally ended in reconciliation between the two sides in July 2004. In the litigation process of this case, that is, in 2003, Huawei's sales in the international and domestic markets reached an unprecedented high - 31.7 billion yuan, and the global market sales increased by 42% year-on-year. Among them, overseas sales reached US $1.05 billion, an increase of 90% year-on-year, and the proportion of overseas sales rose to 27%

from this, we can see the protective effect of independent intellectual property rights on Huawei. Huawei has applied for 6500 patents in total, including 1400 authorized patents, and has become the high-tech enterprise with the largest number of invention patents in China for three consecutive years. However, Huawei has rarely been heard to sue other enterprises for patent infringement. Litigation and safeguarding rights is one of the ways for enterprises to obtain a better development environment, and infringement compensation is not the growth point of enterprise profits. This is even true for large companies such as Huawei. Most small and medium-sized enterprises in China should pay more attention to the self-protection role of patents and be careful to use the striking role of patents

2.2 do not respect others' intellectual property rights

this is a problem for some enterprises that have misunderstandings and flukes about the legal system of intellectual property protection in China. Enterprise managers clearly know that the behavior of the enterprise may infringe the intellectual property rights of others, but they are still pursuing this result. It is a fluke to think that his behavior may not be discovered by the obligee, or even if it is discovered, the amount of infringement compensation will not be very high. When the intellectual property rights of foreign obligees are infringed, there is also a "pride" of "killing the rich and helping the poor". This kind of infringement is typically manifested in the process of infringing others' trademark rights and copyrights. Here is a published trademark infringement case, hoping to alert managers of small and medium-sized enterprises with similar ideas

Around 2000, the head of jiangjiaji Motorcycle Co., Ltd. registered a company called "Yamaha Corporation of Japan" in Ishikawa Prefecture, a remote county in northern Japan. When Yamaha Corporation of Japan found the problem in November 2000, jiangjiaji motorcycle had begun to operate and had signed a trade name license agreement with Zhejiang Huatian Industry Co., Ltd. According to the agreement, "Yamaha Corporation of Japan" authorizes Zhejiang Huatian Industry Co., Ltd. to use "Yamaha Corporation of Japan" and other text marks on motorcycles, and the sales place is China

the predecessor of Zhejiang Huatian Industry Co., Ltd. is Zhejiang Cargill Motorcycle Co., Ltd. Since 2000, Zhejiang Huatian Industry Co., Ltd. has been selling motorcycles with the registered trademarks of Yamaha company such as "Yamaha", "Yamaha", "future" in the engine, body, instrument and other parts through Taizhou Cargill Motorcycle Sales Co., Ltd

Yamaha, Japan, once found the problem, immediately filed a lawsuit in Komatsu branch of Kanazawa district court, Ishikawa Prefecture, Japan, and applied for the cancellation of the company on the basis of infringement. Komatsu branch soon made a judgment to cancel the business name of "Yamaha Corporation of Japan". However, the Japanese Judgment did not affect the production and sales of Huatian industry

in 2002, Yamaha, Japan, filed a lawsuit with the higher people's Court of Jiangsu Province. After the first instance judgment in September, 2005, Huatian industry filed an appeal. On June 5, 2007, the Supreme People's court made a final judgment: Zhejiang Huatian industry and others jointly and severally compensate Yamaha, Japan 43 yuan

this case is highly representative because this "illegal authorization" is common in the domestic clothing, cosmetics and coating industries,

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