The author summarizes the reasons.
Due to historical reasons, there are few enterprises with independent intellectual property rights, and most of the products are located in primary products, so there is a widespread situation of "OEM" production, which is bound to provide an opportunity for some malicious infringers. Some enterprises want to have their own products, but the market is difficult to predict, so they want to use OEM products to test the market; Enterprises selling OEM products have the initiative to operate in the hands of others, and often have disputes with their partners when the development momentum is just right. Not only will it lose money, but its own products will also be diluted due to the loss of its main products, and its pioneering and innovative ability will gradually lose, which will restrict the long-term development of enterprises.
Secondly, most enterprises do not have the core technology of independent intellectual property rights.
In China, only three ten thousandths of enterprises have the core technology of independent intellectual property rights, 99% of enterprises have not applied for patents, 60% of enterprises do not have their own trademarks, and the proportion of private enterprises is even lower. Although the number of patent applications filed by enterprises in China has increased greatly in recent two years, most of them are confined to design and utility model patents, and the number of patents obtained in the international market is very low. Compared with developed countries and Hong Kong and Taiwan, there are some problems such as wide distribution and unreasonable structure.
From the inside of the enterprise, there is no internal management system of intellectual property rights, which is a serious injury to the development of the enterprise.
According to a special survey, there are more than 200 enterprises that have established internal systems of intellectual property rights, of which nearly 50% are establishing internal management systems of intellectual property rights or not at all, and the effective systems have not been fixed by law. Although some enterprises have management agencies responsible for intellectual property rights, most of them are part-time to other departments. Many enterprises attach importance to the training of workers' production skills, but ignore the education of workers' intellectual property rights, and there is no clear regulation on the reward for developing intellectual property rights. Many small and medium-sized enterprises generally have small business scale and irregular management.
There are also many external factors that cause enterprises to fall into the whirlpool of intellectual property infringement.
Because criminals at home and abroad and some "veterans" of patent operation of multinational groups take advantage of the loopholes in China's current patent law, they plunder patent scientific and technological achievements under the guise of patent infringement and infringe on the intellectual property rights of enterprises, which makes enterprises suffer huge economic losses; Even stifle China's innovative growth enterprises. Therefore, although malicious infringement litigation contains risks, cases of counterfeiting patent infringement and infringement of intellectual property rights of enterprises continue to occur, which affects the harmonious development of enterprises. Faced with this situation, on the one hand, the government and judicial organs do not have enough administrative and legal deterrent to enterprises and individuals who maliciously infringe; On the other hand, the judicial utilization rate of enterprise intellectual property disputes is low. Due to the long time-consuming administrative litigation of intellectual property rights and the high cost of legal aid, enterprises lack confidence in seeking justice through administrative and judicial channels. Preventive strategy
The intellectual property disputes of enterprises directly involve the interests of infringers and infringed persons, and also expose the obvious defects of the harmonious protection mechanism of intellectual property rights of enterprises in China. Practice shows that it is of great significance to improve the harmonious protection mechanism of intellectual property rights of Chinese enterprises and curb the occurrence of infringement disputes, so as to enhance the ability of enterprises to create, manage, protect and use intellectual property rights, promote the scientific development of enterprises and build a harmonious society. The following countermeasures can be taken to prevent intellectual property infringement disputes: First, improve the competitiveness of enterprises through technological innovation.
It should be clear that the development prospect of China enterprises is to create their own brands and improve their competitiveness through technological innovation; For small and medium-sized enterprises, independent research and innovation is not an easy task. However, blind imitation will inevitably make it difficult for small and medium-sized enterprises to become stronger. Mike Jammer, president of Haier Group (USA), is more touched by this. He said: "Imitation can't win the market, but it must have original features favored by consumers." Only the unique innovation of enterprises can be imitated by others and the competitiveness of enterprises can be formed.
Enterprises in China are generally short of talents, technology and funds. Therefore, enterprises should improve their competitiveness through technological innovation on the basis of their own actual and traditional industries, and can also transform into scientific and technological enterprises through industrial upgrading. Small and medium-sized enterprises, in particular, can easily transform into technology-based enterprises as long as they grasp the opportunities. At present, there are many industries such as information technology, biotechnology and new materials, and the prospects are very broad. As long as there are suitable technical talents and funds, it can develop. Second, enterprises should closely link intellectual property protection measures with enterprise management.
Enterprises should comprehensively plan patent, copyright, trademark and other protection measures for products that have been developed or will be developed, which are reflected in registration, management, contracts, labor contracts and other aspects, and are closely linked with enterprise management. For example, new products that have been successfully developed can be protected by applying for patents, as trade secrets, and through scientific and technological achievements appraisal, decentralized parts processing channels, etc. Specifically, it is necessary to analyze and plan in detail to decide which part will become a trade secret after strict measures, which part will apply for a patent and which part will be made public. The part of technology with well-known and proprietary features should be classified as patented technology, while the core part of new product technical secrets and the part that is easy to be copied and unique should be applied as trade secrets to protect new product technology and business information. For the design, procedure, new product formula, production technology and experimental methods in new product development, as well as information with secret nature and economic value closely related to new product management, including customer list, supply information, production and marketing strategy, financial situation, pre-tender estimate, etc. We rely on law and daily management to protect it by economic means. In addition, the overall planning of enterprise intellectual property protection measures should include the proper connection of various legal protection means such as trade secrets, patents, copyrights, trademarks and anti-unfair competition, and find out the legal protection means and strategies that are most suitable for the market situation and make it a complete system. Third, we should establish and improve the early warning mechanism of enterprise intellectual property rights.
Taking patents as an example, the patent early warning mechanism mainly includes three parts, namely, information collection mechanism, analysis and processing mechanism and early warning mechanism. Take the patent tracking and early warning monitoring as an example. First, all necessary measures stipulated in the patent law should be strictly implemented for authorized patents, including: marking the patent mark, patent number and patentee on the patented product or product packaging; To transfer patented technology to others, a written contract shall be concluded, and the registration formalities shall be handled with the Patent Office, and the patent certificate and relevant evidence indicating the patent shall be properly collected and kept, and the annual fee shall be paid on time. Evaluate the innovation of authorized patents in time, find out the invention height of authorized patents, and distinguish which ones are for strategic protection, which ones are for occupying recent sites, which ones can be implemented, and whether it is necessary to carry out follow-up development according to their different values. The second is to evaluate the authorized patents of competitors or partners, and to treat them differently, distinguishing between technologies that can be developed by themselves or jointly, technologies that can participate in competition, and technologies that are worth buying. And arrange special personnel to collect information, find patent applications put forward by others that may harm the interests of the unit in time, and put forward opinions to the Patent Office in time. Where a patent right has been granted, request the Patent Office to revoke the patent right or request the Patent Reexamination Board to declare the patent invalid. Third, pay close attention to whether there is unauthorized use of patented technology in the same industry at home and abroad, and once found, take immediate measures to stop the other party's infringement. Track, investigate and analyze patent applications, authorizations and disputes, as well as the current situation and development trend of patents in trade, and formulate early warning plans for intellectual property rights. Fourth, enterprises should strengthen their awareness of prevention and legal construction to curb malicious infringement lawsuits.
Malicious litigation is a special phenomenon in intellectual property litigation in recent years, and it is an illegal act that the parties pursue illegal or improper interests or achieve other illegal purposes based on malice. The reason why the malicious lawsuit of intellectual property rights was filed or even won is largely due to the defects in the legal system, especially the litigation legal system.
At present, although there is no specific provision for malicious litigation of intellectual property rights in China, the judicial organs have taken measures at the institutional level. For example, the two judicial interpretations of the Supreme Court on the temporary injunction before patent and trademark litigation and the reply on "confirming non-infringement litigation" have played an active and effective role. At the same time, in the revision of the Patent Law, China should add criminal provisions to crack down on malicious infringement, investigate the criminal responsibility of malicious infringers who have caused great economic losses to the patentee, and confiscate their illegal income. An exemption clause should be added. Non-malicious infringement that unintentionally involves patent infringement and is stopped in time after being informed can be exempted from punishment and compensation through administrative mediation. So as to realize the harmonious development of enterprises in China, strengthen the intellectual property protection of enterprises and improve the level of intellectual property protection of enterprises.