1. Identification of corporate intellectual property risks

The risks of corporate intellectual property are inseparable from the production and operation activities of the enterprise and run through the entire process of the enterprise. According to the different characteristics of the business activities in the three stages of enterprise R&D, production and sales, the intellectual property risks are decomposed into the stages of business operations, mainly in the following aspects:

1. Risks during R&D activities

R&D activities are the basic link for companies to launch new products and gain market competitive advantages. Intellectual property risks are involved in different stages such as the establishment of R&D projects, the determination of R&D routes, and the protection of research results. .

First, a detailed search of patent information was not conducted during the research and development project demonstration, resulting in a large amount of hard work being invested, but the R&D results obtained through independent development could not be used, otherwise it would constitute infringement. This example occurs in many exporting foreign trade companies. A large domestic auto parts factory actively explores foreign markets and develops an electric power steering for automobiles. There is strong demand in foreign markets, but the purchaser requires it to issue an intellectual property certificate. Only then did the company realize that because it had not conducted an intellectual property information search, the products it had worked so hard to create were already protected by patents abroad. This meant that the foreign market had been occupied by others, and millions of dollars of R&D investment had been wasted. .

The second is the risk of being restricted in use if the new technology or product developed is not effectively protected when research and development is completed. Many companies develop new products but fail to apply for patent protection in a timely manner. They often panic until others take over the market first and regret not applying for patent protection in the first place. A listed company in Jiangsu has developed a new improved method and device for carbonylation to produce acetic acid, which can more than double the production capacity of the original scale device. However, the company has protected it as a technical secret and has not made it public. Competitors in the domestic market have a strong sense of protection and took the lead in applying for patent protection for this technology in 2003. Due to a certain lag in the disclosure of invention patent applications, generally patent applications can only be made public after 18 months, so it was not until January 2005. The company only became aware of the threat it faced after a patent filed by a competitor was made public last month. At the end of 2004, the company's second-phase project with this patent as its core technology has passed the project approval and is about to start construction. The smooth commissioning of the second-phase project will definitely secure this company's leading position in the domestic market. But who would have thought that Cheng Yaojin, who came out halfway, put the company in an extremely passive situation. The authorization of the competitor's patent meant that the company's construction project with a total investment of more than 800 million had to stop production, otherwise it would be patent infringement. The only The only way out is to seek reconciliation from the opponent and strive for patent licenses. This can be said to be a miscalculation and a failure in every move.

The third is the patent trap deployed by foreign patent holders for domestic enterprises, which has become the focus of intellectual property risks faced by successful domestic enterprises. Foreign patent holders usually adopt the tactic of letting go of water and raising fish. They often do not sue you for infringement from the beginning but wait until the product market of domestic companies matures before they start to restrict you, ranging from daily necessities such as lighters and zippers to mobile communications and semiconductors. For high-tech industries, foreign companies have laid patent landmines at home and abroad. Japan's YKK company accounts for 74% of China's total zipper patent applications, and foreign patent applications in the top ten high-tech fields such as mobile communications account for 80-90% of the total. Any innovation by domestic enterprises may encounter intellectual property risks. Zhejiang Kanghua Eyewear Co., Ltd., a leading company in the domestic eyewear accessories manufacturing industry, was accused of infringement by a German company in 2007 after gradually growing in foreign markets for more than ten years.

Fourthly, the intellectual property ownership of enterprises in industry-university-research cooperation has not been clearly regulated, leading to the risk of creating competitors. Industry-university-research cooperation is currently an important form of improving the technological innovation capabilities of enterprises. Product development of enterprises is often the result of the efforts of multiple parties, so all parties may own a certain proportion of intellectual property rights in this product. Since the ownership and risks of intellectual property rights are not clarified in R&D contracts, there are often intellectual property risks in the ownership and use scope of the intellectual property rights formed.

If the research institution only licenses the intellectual property results such as patents to enterprises for use, there is a risk that the research institution will repeatedly license the intellectual property results to third parties, or the results of industry-university-research cooperation will be used by multiple rights holders** *Yes, and each right holder has the ability to implement the patent right, there will inevitably be competition among the right holders regarding the implementation of the patent right, and it may even evolve into vicious competition.

2. Risks during production activities

The intellectual property rights involved in the production process of enterprises include: patents, trademarks, computer software, copyrights, trade secrets, such as proprietary technology, processing techniques, production equipment improvement plans, production information, Procurement and processing contracts, production control software, product styling, unique product decoration, etc.

In the procurement process, companies often do not pay attention to the evaluation and determination of the intellectual property status of suppliers and purchased products, and rarely require suppliers to provide proof of ownership of the intellectual property rights involved. Especially in the process of external collaborative production such as entrusted processing and processing with supplied materials, because the intellectual property rights involved are not regulated during the procurement and assembly process, and the intellectual property rights and responsibilities of the OEM process are not clearly defined, bombs of infringement are often planted. For example, if the product entrusted to be processed contains patented technology, but the orderer or client is not the patentee and has not obtained the license to implement the patent, the contractor or processor will easily fall into the legal trap of infringement and fall into infringement litigation and suffer losses. . In 2007, the world's largest manufacturer of electric kettle thermostats, the UK's Strix, sued several domestic small companies such as Good Mommy Electrical Appliances Factory and its suppliers for infringing its patent rights. Since OEM production involves purchasing various products, Raw materials are grown and then assembled to complete the manufacturing process of unbranded “white machine” products. In the entire "white machine" industry chain, many companies do not clearly regulate the intellectual property rights involved. Rights and responsibilities are confused. Once infringement disputes arise, they blame each other, but in the end they are all to blame.

For the use of new technologies and new products, especially the raw materials and equipment exclusively customized by the company, because it is in trial production or small-scale production, the company generally does not clarify the confidentiality and intellectual property protection responsibilities of the supplier. . In particular, a large number of small and medium-sized enterprises are facing strong market competition pressure in the trial production of new samples independently developed according to the requirements of host manufacturers during supporting processing. It is even more difficult to put forward intellectual property protection requirements for host manufacturers, resulting in the inability of enterprises to effectively obtain intellectual property rights. protection. There are more than 600 auto parts companies in Danyang, Jiangxi. The development of new lamps is often based on the requirements of the OEMs. Each supporting factory designs and develops by itself. However, the order contract clearly stipulates that the OEMs also have the knowledge of the products developed by the supporting factories. It has property rights and can be licensed for use, which means that the OEM can find another company to produce this product. Therefore, there are constant cases of OEMs replacing supporting companies. Often, one company develops a new product, and a group of companies follow suit and imitate it. The consequence is that the company that was the first to invest in development suffers the most.

3. Risks during trade activities

The intellectual property rights involved in the trade process of enterprises include: patents, trademarks, computer software, copyrights, trade secrets, such as marketing strategies, marketing contracts, marketing and promotion plans, and unique product decoration. wait.

The appearance design of the product is not protected in advance, resulting in advertising for others and opening up the market. Before selling products, companies must design the shape or appearance packaging of their products according to the market. Unique product decoration can become a unique symbol of the product and open up channels for product market development. Often, many companies do not effectively design the unique product decoration in the early stages of product launch. Intellectual property protection, such as applying for design patents, registered trademarks, etc. When a product occupies a certain market and counterfeiters appear, protection is only considered. Because there is no effective legal protection in advance and no clear basis for judgment, counterfeiters often easily get a share of the market that companies have worked so hard to open up.

Pre-sale advertising descriptions, sales strategies and market promotion methods of products are all key points that require intellectual property protection. These are the trump cards for companies to launch new products, such as changes in the sales method of CDMA mobile phones entering the market. , it bypasses many middlemen and sells products directly to retailers. The specific sales strategies are the secrets of each merchant, and effective protection must be taken in order to successfully win the battle to occupy the market.

The lack of necessary careful investigation before product marketing decisions and the failure to conduct necessary searches for advertising keywords often lead to companies falling into intellectual property dilemmas. In 2005, Shanghai Pepsi Beverage Co., Ltd. and Zhejiang private enterprise Lanye Company went to court. Pepsi-Cola spent hundreds of millions of yuan and distributed up to 2 billion yuan in gifts to launch the "Blue Storm" marketing campaign. While the Blue Storm is in full swing, Lanye Company, a small company in Zhejiang, sued Shanghai PepsiCo for infringement of its Blue Storm registered trademark on cola drinks. In May 2007, the Zhejiang Provincial Higher People's Court determined that the infringement was established and required PepsiCo to pay 3 million yuan in compensation. Pepsi-Cola did not forcefully implement the marketing plan knowing that there was a risk of infringement. Instead, it spent huge sums of money on the marketing campaign without discovering in advance that the keywords of the marketing campaign had been registered as trademarks. In the end, it fell into the embarrassment of being unable to stop.

2. Effective means of risk prevention

Intellectual property risks stem from many uncertain factors in technology, operations, management and other aspects. The most effective way to reduce risks is to prevent risks and implement effective intellectual property management.

1. Conduct intellectual property review

Intellectual property review includes the retrieval, analysis and evaluation of relevant technical information, especially patents, during the R&D project establishment phase; after the R&D is completed, the protection form of the results will be reviewed to determine whether to adopt patents or technical secrets. and other different protection methods; evaluation of the process route in the production stage, using patent documents to select a better process route; evaluation of the supplier's intellectual property status in the procurement stage; investigation of the intellectual property rights of marketing plans and advertising terms in the product sales stage, and evaluation of the desired process route. Trademark search for registered trademarks, etc.

Bajie Intellectual Property Services Co., Ltd. has successful practical experience in this regard. A complete intellectual property review process has been established to control intellectual property risks and effectively use patent documents to improve the starting point of research and development. The company has established intellectual property analysis and management methods, using the patent search and analysis system platform to embed analysis into all aspects of the R&D process. It mainly conducts product and technology intellectual property analysis, target country intellectual property environment analysis, competitor intellectual property analysis, and upstream and downstream analysis. Analysis of manufacturer’s intellectual property rights. Through analysis, companies can effectively control risks in all aspects.

2. Establish intellectual property files

The intellectual property files established by the enterprise include relevant information and documents for trademark registration and patent application, as well as research and development records of research and development activities, intellectual property review materials, etc. Generally speaking, the patent content in the enterprise's intellectual property files should include original documents from technology research and development, trial production, patent application, modification process documents, patent application acceptance notice, patent certificate, patent annual fee payment receipt, patent change documents, etc. The trademark content should include trademark design documents, registered trademark application documents, trademark registration announcement, registered trademark certificate, trademark license contract, etc. Complete corporate intellectual property files should be organized and summarized according to the activity process and characteristics of corporate intellectual property, so as to ensure that original, direct, and complete legal evidence can function as a "shield" to defend against infringement lawsuits. In this way, not only can all the intellectual property rights owned by the enterprise be identified and the ownership of the intellectual property rights be determined, but also market dynamics can be strictly monitored to understand the latest product development status of competitors and the current status of infringement. When corporate intellectual property rights are infringed or threatened, use complete intellectual property files to actively participate in prosecution or response.

3. Take necessary preventive measures

Preventive measures mainly include contractual constraints on partners and employees.

The constraints of partners should clearly regulate the intellectual property rights and responsibilities involved according to the content of the cooperation, and use intellectual property guarantee clauses to exclude the company's infringement liability and reduce possible infringement liability. In this way Even if you are judged to be liable for compensation in a future lawsuit, you can recover compensation from the partner in accordance with the terms of the contract after the lawsuit, and transfer the risk of infringement to the partner. During the procurement process, suppliers should be clearly required to provide intellectual property guarantees to ensure that they do not infringe on others' intellectual property rights and do not purchase infringing products. For example, when making customized products for others, the trademark protection clause should be clearly stated in the contract, that is, the other party must ensure that its trademark is legal and valid. In the event of trademark infringement, the other party will bear full responsibility. When entrusting others to make customized products for the company, the patent protection clause should be clearly stated in the contract, that is, the other party must ensure that its use of patented technology or products is legal and valid. In the event of patent infringement, the other party shall bear full responsibility. At the same time, when specifying supporting manufacturers or supporting host manufacturers, the supplier's confidentiality and confidentiality obligations regarding the use of new technologies and new products, especially raw materials and equipment exclusively customized or independently developed by the enterprise, should be clearly stated in the supply contract. Intellectual property protection responsibilities limit the intellectual property rights of host manufacturers.

Restraints on corporate employees are mainly due to the fact that improper behavior of corporate employees often brings the risk of losing intellectual property rights. Taking high-tech enterprises as an example, their technical developers often unconsciously reuse previous designs or technical solutions for the same technical problems. If the technician has been working for the company and signed a confidentiality agreement with the company, it is not enough to cause a risk of leakage or infringement. But when it switches to another company in the same industry, it will cause troubles of intellectual property infringement. Especially for employees who have signed a confidentiality agreement with their former employer, if they violate the agreement and disclose relevant trade secrets, it will cause legal disputes between the new employer and the former employer. In order to prevent employees from using confidential information from their former employers, including customer identities, business methods, potential customer lists, product sales plans and services, etc., and to avoid the loss of important intellectual property rights of the company with changes in personnel, companies must Non-compete or non-disclosure agreements should be entered into with employees to regulate their duties and prevent the risk of losing intellectual property rights such as technical secrets or trade secrets.