From method to emphasis, the overall solution of enterprise intellectual property strategy and practice

As the main participant in market economy activities, enterprises are closely related to national economic development and strategic implementation.

In the official discourse system, China's economy has entered a new normal. Under the new normal, it will be difficult for China's economy to continue the high-speed growth in the past decade, and the economic development mode will be driven by factors and investment scale to innovation. It can be said that innovation-driven economic development is the only way for China's economic transformation under the new normal.

As the main participant in market economy activities, enterprises are closely related to national economic development and strategic implementation. Compared with the past era of rapid economic growth, enterprises in China need to face more severe and complex internal and external challenges under the new normal. Realizing business transformation and upgrading through innovation will be an inevitable choice for China enterprises to enhance their competitiveness under the new normal. Especially in the case of rising domestic labor costs and changing internal and external market demand, innovation ability determines the life and death of enterprises to a certain extent.

Both the improvement of national innovation ability and the development of enterprise innovation activities are closely related to the intellectual property system. Intellectual property rights protect innovation by giving it property rights, so that innovation subjects can enjoy the benefits and competitive advantages brought by innovation. Imagine, without the support of intellectual property system, what motivation does the innovator have to continue to innovate? Therefore, under the new normal, China enterprises should make good use of intellectual property system and rules, formulate and implement intellectual property strategy, and build an inexhaustible motive force and legal guarantee system for enterprise innovation.

First, the principles of enterprise intellectual property strategy formulation

1. Self-reliance

The intellectual property strategy of an enterprise should be based on its own actual situation, and must not blindly follow the trend or pursue perfection divorced from reality. Before making an intellectual property strategy, an enterprise should analyze the competitive situation, development direction and its own position in the industry, and determine the work focus and management mode of intellectual property according to the innovation mode and development goal of the enterprise.

2. Synergy

In the final analysis, the intellectual property strategy of an enterprise serves the overall development of the company, so the intellectual property strategy cannot be isolated from the overall development strategy of the company, but should be coordinated with other business strategies of the enterprise, such as human resources strategy, financial strategy, R&D strategy and so on. Intellectual property management should strive to be embedded in the daily operation of enterprises together with other management activities.

3. Economic rationality

For most enterprises in China, intellectual property is still a financial expenditure item, and it is still difficult to become a source of profits for enterprises. Enterprises in China must have a long way to go if they want to make profits through intellectual property rights. In this case, the intellectual property strategy of enterprises should adhere to economic principles, attach importance to cost control and strive for additional subsidies. For example, the radical strategy of abandoning the number of patent applications, regularly evaluating the maintenance value of authorized patents, applying for high-tech enterprise certification, and striving for national or local patent funding.

4. Open cooperation

The intellectual property advantage of an enterprise cannot be achieved overnight, and it needs long-term accumulation. Under the new normal, enterprises should break the concept of self-reliance, but should open the door of cooperation, actively integrate external resources, and realize the rapid accumulation of intellectual property strength. For example, through Industry-University-Research cooperation, mergers and acquisitions and other ways to quickly gather intellectual property assets and brand advantages.

Second, the core task of enterprise intellectual property management

1. Building an effective innovation incentive mechanism

The scientific and technological innovation of enterprises can not be separated from the efforts of R&D personnel, and mobilizing the enthusiasm of R&D personnel is the key to improve the innovation ability of enterprises. Therefore, it is necessary for enterprises to formulate the reward policy for service inventions, which is also the requirement of patent law. In order to reduce costs, some enterprises often do not reward inventors, or unilaterally formulate lower reward policies. This is not only not conducive to stimulating the enthusiasm of on-the-job employees, but also prone to litigation risks when inventors leave their jobs.

2. Choose a management mode suitable for your own development.

Enterprise intellectual property management mode will be different in different stages of enterprise development. For example, in the initial stage, enterprises often cannot set up a special intellectual property management team, but tend to outsource it to intermediaries. When an enterprise can set up a special team, the intellectual property management mode will also be divided into R&D-led or legal-led. There is no standard answer to which is better or worse. Therefore, when designing management mode, enterprises should design according to their own actual situation.

3. Take the acquisition and transformation of intellectual property as the core.

The purpose of implementing intellectual property strategy is to gain competitive advantage and create value. Therefore, it is very important to accumulate high-value intellectual property assets and turn them into profit sources. At present, the number of patent applications in China ranks first in the world, most of which are contributed by enterprises in China. However, the number of patents alone is not enough. Only by acquiring more high-value patents and transforming them into real productive forces can intellectual property really become the driving force of enterprise innovation.

4. Prevention and control of overseas intellectual property risks

With what? Belt and Road? With the implementation of the strategy, China enterprises will go to overseas markets more and more, and the intellectual property risks that follow cannot be ignored. For example, Huawei, ZTE, Xiaomi and other companies have been sued for patent infringement by patent fishing companies (NPE) or competitors in overseas markets. Therefore, Chinese enterprises should plan ahead, lay out patents and trademarks in overseas target markets in advance, and enhance their ability to prevent and control intellectual property risks.

Third, the basic framework of enterprise intellectual property strategy

Enterprises involve a wide range of types of intellectual property rights, such as patents, trademarks, copyrights, etc. The acquisition, existence and protection of these rights are different, and the impact on the development of enterprises is also different. Therefore, it is feasible to construct enterprise intellectual property strategy according to the types of intellectual property. Specifically, enterprise intellectual property strategy can be divided into patent strategy, trademark strategy, copyright strategy and so on.

(A) patent strategy

Patent strategy is the most important part of the intellectual property strategy of science and technology enterprises, and its main contents can be divided into patent information utilization, patent application, patent maintenance, patent implementation and reward and punishment policies. What is the goal of patent strategy? Where is R&D and the market, and where is the patent? [Yuan Jianzhong: Theory and Practice of Enterprise Intellectual Property Management, Intellectual Property Publishing House, 20 1 1 Edition, p. 100. ]

1. Utilization of patent information

Patent information is an important source of scientific and technological information. Through patent literature, enterprises can understand the current situation of technology development, track the development trend of technology, monitor the R&D trend of competitors, evaluate the strength of partners and find experts. [Xu, Zhu: Enterprise Intellectual Property Strategy, Intellectual Property Press, 20 10, p. 4 1-42. Therefore, enterprises should pay attention to the utilization and competition of R&D patent information. For major R&D projects, patent search should be carried out at important nodes of R&D to adjust the direction of R&D, bypass the patent layout of competitors, and evaluate the degree of free implementation of R&D achievements.

2. Patent application

Patent application is the main means for China enterprises to accumulate patents and the cornerstone of patent strategy. Whether patent application can be effectively managed is related to the success or failure of enterprise patent strategy. The following nodes need to be highly valued by enterprises:

First, do you need to apply for a patent? Not all research and development achievements should be protected by patents, although patents have strong monopoly power. The acquisition of patent right requires an open technical scheme, which should be novel, creative and practical. Therefore, for technical solutions with low creativity, short business cycle, poor visibility of infringement (such as internal communication) and great commercial value that are not easy to be developed or obtained by reverse engineering, it is appropriate to protect trade secrets; On the contrary, patent protection is suitable for technical solutions with great commercial value, high R&D cost, which are not easy to be obtained and bypassed by competitors and have great defense function in the target market. [Zhu Xuezhong, Qi, Shaoyang: On patent application strategy, scientific research management, No.3, 1994. ]

Second, when and where to apply for a patent should be decided according to the nature of research and development and competition. For the pre-research results, because the market prospect is uncertain, patent application is somewhat gambling; At this time, the basic technical scheme can be applied and laid out as soon as possible, and the peripheral technical scheme applied around the basic scheme can be put forward when the technical scheme is relatively perfect. For the technical scheme to be commercialized, you should apply for a patent as soon as possible to avoid being preempted by competitors. For strategic patent application, it can be put forward in time after analyzing the R&D trend and product layout of competitors. The patent application area should be determined according to the target market of ourselves and competitors, so that we can be offensive and defensive when we enter. First of all, in their own target market, the patent layout should be carried out before the product is launched at the latest to reduce the risk of patent litigation; Secondly, according to the target market of competitors, patent layout should also be carried out. This can not only take the initiative to prosecute, but also counterclaim in time when being sued.

Thirdly, because the objects, acquisition methods, authorization conditions and protection period of the three patents of invention, utility model and design are different, the patentability, application purpose and economic life of the invention and creation should be considered comprehensively when choosing the patent form to protect the invention and creation. Generally speaking, it is not difficult for enterprises to choose the specific form of invention protection.

However, it should be pointed out that at present, most domestic enterprises have a misunderstanding, that is, inventions are more useful than utility models, and designs have the lowest gold content. In fact, these three kinds of patents have their own advantages. As long as they are used properly, any one can achieve unexpected results. At present, the sales of products do not depend entirely on functions and performance, and the novel appearance is also the highlight of product marketing, so it is very necessary to protect the creative appearance. In addition, the visibility of design infringement is high, and it is easy to judge the infringement. Using the patent right of design can achieve the effect of safeguarding rights in a short time.

Fourth, how to control the patent quality. Under the new normal, the pressure of enterprise development and competition is enormous. It is obviously unwise to apply for and maintain patents that cannot bring competitive advantages to the company. Improving patent quality has become an inevitable choice for enterprises. We believe that to improve the quality of patents, we must start from three aspects:

First, enhance the research and development capabilities of enterprises;

Second, do a good job in patent scheme evaluation;

Third, control the quality of patent application text;

Patent examination is an effective method to control patent quality from the previous stage. Generally, senior R&D personnel, marketing personnel and legal personnel are deployed to form a patent review board to review the creativity, market value and infringement visibility of the technical scheme submitted by R&D personnel, and select relatively high-quality technology or design scheme for patent application.

The text of patent application is very important to the quality of patent, and a good technical scheme can only become a valuable patent after superb patent writing. In practice, more than two patent agencies can be entrusted by bidding to achieve the purpose of competition and comparison; In addition, for the patent application text, enterprises can hire professionals to audit, or allow multiple institutions to audit each other.

3. Patent maintenance

For enterprises with more and more patents, patent maintenance can not be ignored. The goal of patent maintenance is to ensure that valuable patents can remain valid. Based on this, enterprises should regularly evaluate and screen out patents that need to be maintained and patents that can be abandoned from the aspects of technology research and development direction, whether they use it themselves, external market demand and whether competitors can adopt it, and do a good job in payment management.

4. Patent implementation

Broadly speaking, patent implementation includes not only patent licensing, transfer, capital contribution and pledge, but also patent protection. Although domestic enterprises still have a long way to go in patent implementation and transformation, with the continuous improvement of innovation ability, patent implementation and transformation rate are still worth looking forward to. At present, domestic enterprises should not only establish a contract management system for patent licensing, transfer and pledge, but also establish a patent infringement monitoring mechanism to regularly analyze competitors' products.

5. Reward and punishment policy

Reward and punishment policy is related to the enthusiasm of R&D personnel and is very important for enterprise innovation. The Patent Law stipulates that inventors have the right to claim awards and remuneration, but some enterprises either cancel awards or the amount of awards is too low in order to save costs. Although this can reduce the expenditure of enterprises in the short term, in the long run, it is not conducive to the improvement of R&D capabilities. In addition, false or failed incentive policies are also likely to cause disputes when inventors leave their jobs.

A more appropriate way to deal with it is that the enterprise should fully negotiate and communicate with all employees or employee representatives, formulate the remuneration and salary scheme acceptable to both parties, or include important R&D personnel in the equity incentive and on-the-job dividend incentive plan, so as to reduce the current cash expenditure.

At present, more and more enterprises begin to implement the patent examination method, and decompose the annual patent examination index into R&D department or intellectual property management department. However, it is necessary to emphasize a reality. At present, the level of patent legal departments or personnel in enterprise management is generally not high, and patent output is more dominated by R&D departments. Therefore, at present, the patent assessment indicators of enterprises should be placed on the R&D side.

(B) Trademark strategy

The focus of enterprise trademark strategy lies in trademark registration, use and protection. The importance and attention of these three aspects will be different at different stages of the enterprise. However, it should be emphasized that the enterprise trademark strategy should be combined with the brand operation strategy, and the two cannot be separated. It can be said that the core purpose of implementing the trademark strategy is to establish the brand of the enterprise.

1. Trademark registration

Although China does not force enterprises to use registered trademarks in goods or services, the risk of using unregistered trademarks is relatively high. Especially before the trademark has formed a certain popularity, once it is registered by others, the enterprise will face the risk of being banned by the exclusive owner of the trademark at any time. Therefore, starting from the long-term development of enterprises, enterprises should try their best to use registered trademarks. For trademark registration, you need to pay attention to the following points:

(1) The product (service) has not been moved, and trademark registration takes precedence.

After the product or service is launched, the attached trademark is easily registered by a third party. Therefore, enterprises should apply for trademark registration at the latest before products or services are put on the market. Trademark registration generally takes more than nine months to be approved. Before the application is approved, the applicant can't actually prohibit others from using it. In order to avoid this situation, enterprises can apply for trademarks in the design stage of products or services, and strive for approval when they go public.

(2) Trademark design should be combined with enterprise brand marketing.

In addition to ensuring distinctiveness, trademark design should also be combined with the brand image of the enterprise, that is, trademark graphics and texts should be concise, clear and positive, which is conducive to showing the good image of the enterprise. It should be reminded that the graphic design of trademarks should avoid using other people's works and trademark graphics.

(3) Do a good job of trademark retrieval before application.

In order to ensure that the trademark application can be approved, enterprises should conduct a trademark search before applying for a trademark to confirm whether others have applied for the same or similar trademark. At present, the website of the Trademark Office can be inquired for free, but due to the lag of data update, enterprises should re-examine it regularly.

(4) Registration covers core and similar categories.

In addition to the right to use the registered trademark on the approved goods, the exclusive right holder of a registered trademark may also prohibit others from using the same or similar trademark on the same or similar goods (except those that will not cause confusion). Therefore, from the perspective of expanding the scope of use of enterprises and blocking the scope of use of competitors, trademark registration should cover the categories of its own goods and similar goods.

(5) Individual application and joint registration

Used to combine trademarks, including characters, patterns, letters, etc. , enterprises can apply for their Chinese characters, patterns, letters, etc. And then apply together. Although the application fee needs to be paid twice, it can reduce the risk that the combined trademark will be rejected as a whole because a certain element cannot be registered. In addition, separate application and joint registration can also expand the number of trademarks that enterprises can use. [Yuan, Su: Trademark strategic management? Legal Support for Company Brand, Intellectual Property Press, 2007, p. 132- 134. ]

2. Trademark use

The use of trademarks should be formulated according to the development stage and brand strategy of enterprises. For start-ups, it is a wise choice to use the same trademark on all products. Because the publicity resources that enterprises can invest at this stage are limited, the use of a single trademark is conducive to centralized publicity and rapid promotion of trademark awareness.

For large and medium-sized enterprises with strong strength, it is a good choice to use different trademarks according to the types of goods and the degree of differentiation. In this way, it can not only cultivate a number of well-known trademarks for enterprises, but also reduce the risk that a product quality problem will damage the whole brand image; It is also conducive to the formation of healthy competition between different business divisions of the company.

3. Trademark protection

Enterprises will encounter trademark infringement more or less in the course of business operation. At present, the main ways to safeguard rights are administrative investigation and judicial protection. Compared with judicial protection, administrative investigation has the characteristics of simple procedure and quick handling, but it lacks finality. Therefore, combining the two means to safeguard rights is a better choice. In recent years, with the popularity and development of the Internet, online trademark infringement has become increasingly common, and the resulting damage cannot be underestimated. In this regard, enterprises should strengthen network infringement monitoring and timely safeguard rights.

(3) Copyright strategy

Copyright management is more important for software development enterprises and needs more attention. Software enterprise copyright management should pay attention to the following three points:

1. Establish a record and registration system.

Because the copyright is obtained when the work is created, enterprises should establish a recording system in the process of software development, register the development process and keep the original documents. In addition, for important software products, enterprises should conduct copyright registration in time after the development is completed. Original records and copyright registration certificates are important evidence to prove the identity of the right holder and the time of obtaining the right in copyright infringement disputes.

2. Design anti-counterfeiting signs

In the case of computer software copyright infringement, the comparison of the original defendant's procedures is a necessary step to identify the infringement, which is mostly completed by appraisal institutions in judicial practice. When the defendant does not submit the source program, the comparison of program identity is very complicated and difficult. Therefore, enterprises can design anti-counterfeiting marks in the process of software development, such as deliberately leaving the English name of the enterprise, embedding special symbols and insignificant errors in the program. If these anti-counterfeiting marks can be read on the defendant's products, the court will generally find that the defendant copied the plaintiff's computer software. [Yuan Jianzhong: Theory and Practice of Enterprise Intellectual Property Management, Intellectual Property Publishing House, 20 1 1 Edition, p. 133. ]

(D) Business secret strategy

For enterprises, the key confidential information is mainly technical information and customer list. As for the protection form of technical information, that is, patent protection or trade secret protection, I have discussed it in the previous article, and I will not repeat it here. The goal of business secret management in enterprises is to prevent the disclosure of business secrets by establishing a confidentiality system. Therefore, the key to the management of business secrets lies in the construction of confidentiality system.

1. Establish a confidentiality system

An enterprise shall formulate a manual for the protection of trade secrets, and determine the scope of confidential objects, the classification standards of confidentiality levels, the authority of different levels of personnel to contact confidential information, the management and destruction of information files, and the responsibility of relevant personnel for violating confidentiality obligations. When employees enter the job, they should set confidentiality provisions in the labor contract, and issue a confidentiality manual to be signed by the employees.

However, it is not enough to have a confidential manual. Enterprises should also establish necessary physical protection measures, such as setting up security warning signs and access control rights in R&D centers, and setting up outgoing and copying rights on office computers.

In a word, it is not enough for the secrecy system to obtain confidential information by improper means.

2. Sign protection agreements in cooperation and exchanges.

In technical cooperation, investment and financing mergers and acquisitions and other occasions where certain technical information needs to be disclosed, attention should be paid to signing confidentiality agreements with relevant parties.

3. Non-competition agreement

In order to protect trade secrets, enterprises can sign a non-competition agreement when employees in important positions leave their jobs. However, the non-competition agreement should give reasonable compensation to the resigned employees, and the restrictions on the region, industry and time limit should be fair and reasonable, so as to avoid being deemed invalid by the court in the course of litigation.

4. Is the spring of intellectual property in China coming?

In recent years, intellectual property rights have increasingly become a hot word, which not only appears in important national documents many times, but also is often mentioned by officials at all levels. Take patents as an example. In the past few years, the number of patent applications in China has soared, and now it ranks first in the world. All this seems to indicate that the spring of intellectual property rights in China has arrived.

Is that really the case? Taking patents as an example, it is an indisputable fact that a large number of authorized patents are put on hold or abandoned in advance behind the prosperity of patent applications; The amount of patent infringement compensation is low and the period of rights protection is long, so far there has been no obvious improvement; For most enterprises, there is still a long way to go to get cash income through patents. All this seems to tell us that the spring of intellectual property rights has not really arrived.

Whether the spring of intellectual property has come, different people will have different answers. Under the new normal, the national innovation-driven strategy needs the support of intellectual property system, and intellectual property will play a vital role in national development. In this context, China enterprises should create their own spring with their own strength instead of waiting for the arrival of spring.

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