How do start-ups avoid intellectual property risks?

First, enterprise intellectual property risk identification

The intellectual property risk of an enterprise is inseparable from the production and operation activities of the enterprise and runs through the whole process of the enterprise. According to the different characteristics of R&D, production and sales, the intellectual property risks are decomposed in combination with the stages of enterprise operation, mainly in the following aspects:

Risks during 1.R&D activities

R&D activities are the basic link for enterprises to launch new products to gain competitive advantages in the market. The different stages of R&D project establishment, R&D route determination and research achievements protection all involve intellectual property risks.

First, the patent information was not searched in detail during the research and development demonstration, which led to a lot of hard work and investment, but the research and development results obtained by independent development could not be used, otherwise it would constitute infringement. This example happened in many foreign trade enterprises. A large domestic auto parts factory actively explored foreign markets and developed an electric power steering gear for automobiles. There is a strong demand in foreign markets, but the buyer requires it to issue an intellectual property certificate. At this time, the enterprise realized that the products that had been worked so hard applied for patents abroad because there was no intellectual property information retrieval at the beginning, which meant that foreign markets were occupied by others and millions of R&D investments were wasted.

Second, after the completion of research and development, the developed new technology or product will not be effectively protected, leading to the risk of being restricted in use. Many enterprises have developed new products and failed to apply for patent protection in time. They often wait for others to start enclosure before they panic and regret not applying for patent protection. A listed company in Jiangsu has developed a new and improved method and device for carbonylation of acetic acid, which can increase the production capacity of the original scale device by more than 2 times, but the company has protected it as a technical secret and has not made it public. But its competitors in the domestic market have a strong sense of protection. In 2003, he took the lead in applying for patent protection for this technology. Due to a certain lag in the disclosure of invention patent applications, general patent applications will not be made public until 18 months later, so it was not until the patent applications submitted by competitors were made public in June 2005 that this enterprise realized the threat it faced. At the end of 2004, the second phase project of the enterprise with this patent as its core technology has passed the project approval and will start construction soon. The successful commissioning of the second phase project will certainly consolidate the leading position of the enterprise in the domestic market. However, this half-way success has put this enterprise in an extremely passive position. The authorization of competitors' patents means that the construction project with a total investment of more than 8 billion yuan must be stopped, otherwise it will be patent infringement. The only way out is to seek the reconciliation of opponents and strive for patent license, which can be described as miscalculation and lose-lose.

Third, the patent trap laid by foreign patentees on domestic enterprises has become the focus of intellectual property risks faced by successful domestic enterprises. Foreign patentees usually adopt the tactics of releasing water to raise fish. They often don't sue you for infringement at first, but wait for the product market of domestic enterprises to mature, and then start to restrict you, from daily necessities such as lighters and zippers to high technologies such as mobile communications and semiconductors. Foreign enterprises have planted patent mines at home and abroad. Japanese YKK Company accounts for 74% of the total number of patent applications for zippers in China, and 80-90% of foreign patent applications in the top ten high-tech fields such as mobile communication. Zhejiang Kang Hua Glasses Co., Ltd. is a leading enterprise in domestic glasses accessories manufacturing industry. After growing in foreign markets for more than ten years, it was accused of infringement by German enterprises in 2007.

Fourth, the intellectual property rights of enterprises in Industry-University-Research cooperation have not been clearly regulated, which leads to the risk of self-cultivation of competitors. Industry-University-Research cooperation is an important form to improve the technological innovation ability of enterprises at present. The product development of an enterprise is often the result of many efforts, so all parties may have a certain proportion of intellectual property rights in this product. Because the ownership and risk of intellectual property rights are not clearly stipulated in the R&D Contract, there are often intellectual property risks in the destination and scope of intellectual property rights. If the research institutions only license the formed patents and other intellectual property achievements to enterprises, there is a risk that the research institutions will repeatedly license the intellectual property achievements to a third party for use, or the achievements of Industry-University-Research cooperation are owned by multiple obligees, and each obligee has the ability to implement them, then there will inevitably be competition between obligees for the implementation of patent rights, and even become vicious competition.

2. Risks in production activities

Intellectual property rights involved in the production process of enterprises include: patents, trademarks, computer software, copyrights, trade secrets, such as proprietary technology, processing technology, improvement scheme of production equipment, production information, procurement and processing contracts, production control software, product modeling, unique commodity decoration, etc.

In the process of purchasing, enterprises often do not pay attention to the evaluation and determination of the intellectual property status of suppliers and purchased products, and rarely ask suppliers to provide proof of the ownership of intellectual property rights involved. Especially in the process of foreign cooperative production such as entrusted processing and processing with supplied materials, the intellectual property rights involved in the procurement and assembly process are not standardized, and the definition of intellectual property rights and responsibilities in the OEM process is not clear, which often lays a bomb of infringement. For example, the products entrusted for processing contain patented technology, but the ordering party or the entrusting party is not the patentee and has not obtained the patent license right, then the contractor or the processing party will easily fall into the legal trap of infringement and suffer losses from infringement litigation. In 2007, Strix, the world's largest electric kettle thermostat manufacturer, sued many small enterprises such as Haomami Electric Appliance Factory and its suppliers for infringing their patent rights, because OEM is to complete the manufacturing process of "white machine" products without brand names by purchasing various raw materials and then assembling them. In the whole "white machine" industrial chain, many enterprises simply do not clearly regulate the intellectual property rights involved, and their rights and responsibilities are all a muddled account. In the event of infringement disputes, they will shirk their responsibilities, but in the end they are all to blame.

The adoption of new technologies and products, especially the raw materials and equipment exclusively customized by enterprises, is in the stage of trial production or small batch production, and enterprises generally have no clear responsibility for confidentiality and intellectual property protection of suppliers. Especially when a large number of small and medium-sized enterprises independently develop new samples according to the requirements of host manufacturers in supporting processing, it is more difficult to put forward intellectual property protection requirements for host manufacturers due to strong market competition pressure, which leads to the inability to effectively protect the intellectual property rights of enterprises. There are more than 600 auto parts enterprises in Danyang, Jiangsu. The development of new lamps is often based on the requirements of automobile manufacturers, and each supporting factory designs and develops itself. However, it is clearly stipulated in the order contract that automobile manufacturers also enjoy the intellectual property rights of products developed by supporting factories, which means that automobile manufacturers can find other enterprises to produce such products. Therefore, examples of automobile manufacturers replacing supporting enterprises continue to occur. It is often an enterprise that develops new products, and a group of enterprises follow suit, which leads to the biggest loss of the first enterprise to invest in development.

3. Risks during the transaction

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

The appearance design of the product was not well protected in advance, which led to advertising for others and opening up the market. Enterprises should design the appearance or packaging of products according to the market before selling them. Clever commodity decoration can become the unique logo of products and open the channels for product market development. Many enterprises often fail to effectively protect the intellectual property rights of unique commodity decoration at the initial stage of product launch, such as applying for design patents and registered trademarks. When products occupy a certain market, counterfeiters only want to protect them. Because there is no effective legal protection beforehand and no clear judgment basis, the market that enterprises have worked hard to develop is often easily shared by counterfeiters.

Advertising description, sales strategy and marketing methods before product sales are the key points that need intellectual property protection. These are the killer weapons for enterprises to launch new products, such as the change in the way CDMA mobile phones enter the market, bypassing many middlemen and selling products directly by retailers. The specific sales strategy is the secret of every business, and effective protection must be taken to fight a surprise market battle.

The lack of necessary careful investigation before product marketing decision-making and the lack of necessary retrieval of advertising keywords often lead enterprises to fall into the dilemma of intellectual property rights. In 2005, Shanghai Pepsi-Cola Beverage Co., Ltd. and Zhejiang private enterprise Ye Lan Company went to court. Pepsi launched the "Blue Storm" marketing campaign, costing hundreds of millions of yuan and giving away as much as 2 billion yuan. While the Blue Storm is in full swing, Ye Lan Company, a small enterprise in Zhejiang Province, sued Shanghai Pepsi for infringing the registered trademark right of Blue Storm on its cola drinks. In May 2007, Zhejiang Higher People's Court found that the infringement was established and demanded that PepsiCo compensate 3 million yuan. Pepsi-Cola didn't forcibly implement the marketing plan when it knew that there was infringement risk, but spent a lot of money on marketing action without finding out that the theme of marketing action had been registered as a trademark in advance, and finally fell into the embarrassment of wanting to stop.

Second, the effective means of risk prevention

Intellectual property risks stem from many uncertain factors such as technology, operation and management. The most effective way to reduce risks is to guard against risks and implement effective intellectual property management.

1. Conduct intellectual property review.

Intellectual property review includes searching, analyzing and evaluating relevant technical information, especially patents, in the establishment stage of R&D projects; After the completion of research and development, review the forms of protection of the results and determine different protection methods such as patents or technical secrets; Judge the process route in the production stage and choose a better process route by using patent literature; Evaluation of the intellectual property status of suppliers in the procurement stage; In the product sales stage, the intellectual property investigation of marketing plan and advertising language, trademark inquiry of the trademark to be registered, etc.

Bajie Intellectual Property Service Co., Ltd. has successful practical experience in this respect. Established a sound intellectual property review process, controlled intellectual property risks, effectively used patent documents, and improved the starting point of research and development. The company has established the management method of intellectual property analysis, and embedded the analysis into every link of R&D process by using the platform of patent retrieval analysis system, mainly including product and technology intellectual property analysis, intellectual property environment analysis of target country, intellectual property analysis of competitors and intellectual property analysis of upstream and downstream manufacturers. Through analysis, the company can effectively control all aspects of risk.

2. Establish intellectual property files

The intellectual property archives established by enterprises include materials and documents related to trademark registration and patent application, as well as R&D records of R&D activities, intellectual property examination materials, etc. Generally speaking, the patent contents in enterprise intellectual property archives should include the original documents of technology research and development, trial production, patent application, revised process documents, patent application acceptance notice, patent certificate, patent annual fee bill, patent change documents, etc. Trademark content should include trademark design documents, registered trademark application documents, trademark registration announcement, registered trademark certificate, trademark license contract, etc. A complete enterprise intellectual property file should be sorted and summarized according to the activity process and characteristics of enterprise intellectual property, so as to ensure that it can play the role of original, direct and complete legal evidence and serve as a "shield" to defend against infringement litigation. In this way, we can not only identify all the intellectual property rights owned by the enterprise itself, but also strictly monitor the market dynamics and understand the latest product development and infringement of competitors. When the intellectual property rights of enterprises are infringed or threatened, they should actively participate in the prosecution or respond to the lawsuit by using the complete intellectual property files.

3. Take necessary preventive measures

Preventive measures mainly include contractual constraints on partners and employees.

Constraints on partners should clearly regulate the intellectual property rights and responsibilities involved according to the cooperation content, and use the provision of intellectual property protection clauses to exclude the tort liability of enterprises and reduce the possible tort liability, so that even if they are judged to be liable for compensation in subsequent lawsuits, they can recover compensation from partners according to the contract terms after litigation and transfer the tort risk to partners. In the procurement process, suppliers should be explicitly required to guarantee intellectual property rights to ensure that they do not infringe on the intellectual property rights of others and do not purchase infringing products. For example, when making branded products for others, the trademark protection clause should be made clear in the contract, that is, the other party must ensure that its trademark is legal and effective, and once trademark infringement occurs, the other party will bear all the responsibilities. When entrusting others to make brand products for the enterprise, the contract should specify the patent protection clause, that is, the other party must ensure that the patented technology or product is legal and effective, and once the patent infringement occurs, the other party will bear all the responsibilities. At the same time, when appointing supporting manufacturers or supporting host manufacturers, new technologies and products, especially raw materials and equipment exclusively customized or independently developed by enterprises, should be clearly used in the supply contract, and the intellectual property rights of host manufacturers should be restricted.

The constraint on employees is mainly due to the risk of intellectual property loss caused by improper behavior of employees. Take high-tech enterprises as an example, their technical developers often unconsciously reuse previous designs or technical solutions aimed at the same technical problem. If the technician has been working in the enterprise and signed a confidentiality agreement with the enterprise, it is not enough to cause the risk of disclosure or infringement. However, when it moves to another enterprise in the same industry, it will cause the trouble of intellectual property infringement. In particular, employees who have signed a confidentiality agreement with their former employers, if they violate the agreement and disclose relevant business secrets, will cause legal disputes between the new employer and the former employer. In order to prevent employees from using confidential information of former employers, including customer identity, business mode, list of potential customers, product sales plans and services, and to avoid the loss of important intellectual property rights of enterprises with the change of personnel, enterprises should conclude a non-competition or confidentiality agreement with employees in the recruitment process to standardize employees' work behavior and prevent the risk of loss of intellectual property rights such as technical secrets or business secrets.