In recent years, my country has continuously promulgated laws and policies to strengthen intellectual property protection, but companies are still unclear on how to protect innovative technologies through intellectual property rights. For example, trade secret protection measures do not meet legal requirements and patent applications are unplanned. The problem has caused countless companies to lose in the protection of intellectual property rights, and the market has been eroded by competitors. How to protect technological innovation through a reasonable path of intellectual property protection is a dilemma faced by enterprises. This article provides path suggestions for enterprise intellectual property protection from the perspective of trade secret protection and patent layout protection technology innovation.
Adopting the method of "trade secret and patent combination" to protect technological innovation
Trade secrets and patents belong to different intellectual property rights. There are many differences between the two in terms of legal provisions, powers, and protection methods, but both are important weapons and means to protect technological innovation and maintain an enterprise's competitive advantage in the market. Protecting the technological innovation of enterprises through the combination of trade secrets and patent layouts and maintaining their market competitive advantages are also important manifestations of the rational use of intellectual property rights by enterprises.
Trade secrets and patents have different focuses on protecting enterprise technological innovation. Trade secrets focus on protecting innovative technologies in a confidential manner, while patents are through the disclosure of innovative technologies in exchange for protection. Patent is the protection of technologies that are not suitable for protection by trade secrets. For example, for a piece of equipment, the connection structure of the equipment can be protected by patents, and the processing methods and equipment parameters of the equipment can be protected by trade secrets. The two can complement and cooperate in the protection of innovative technologies.
"Combined protection of trade secrets and patent layout" includes two parts: the construction of a trade secret system and patent layout. Combined protection is to give full play to the advantages of trade secrets and patent protection. The path of enterprise portfolio protection shall include at least the following contents.
(1) The enterprise constructs and operates a trade secret protection system
The trade secret protection system is a management system for enterprises for the purpose of protecting trade secrets. It integrates management software, management systems, physical protection and other measures to prevent the disclosure of trade secrets in multiple dimensions.
1. The goal of an enterprise to build a business secret protection system
The establishment of the enterprise trade secret system mainly achieves three goals: first, let the trade secret information form an enterprise information asset; second, prevent the leakage of trade secrets; third, make the use of trade secret information traceable, and form a more complete after leakage. Chain of evidence.
2. The establishment of a corporate trade secret protection system includes at least the following steps
The steps of establishing a protection system for enterprise trade secrets mainly include: first, to conduct due diligence on the management measures of enterprise trade secrets, to understand and learn about the current situation of enterprise trade secret management, and to discover problems in the management of trade secret information; second, to organize trade secret information And inventory, so that the company’s trade secret information can be summarized and classified; third, design a variety of management measures for classified and stored trade secret information, such as encryption software, physical access control, personnel management systems, company management systems, etc.; fourth; , To assess and supervise the operation of the established trade secret protection system, so that the management system continues to operate.
(2) Patent layout for the innovative technology of the enterprise
Patent layout is the planning and arrangement of patent applications. Through the selection of patents, the time of application, and the choice of geographical channels, the patent layout is formed strategically. The key and core of the patent layout lies in "planning" and "strategy". Through planning, "establishing a bureau" and "forming a bureau" through strategy to serve the development needs of enterprises. 【1】
Patent layout should aim at allowing companies to maintain market competitive advantages, and conduct patent layout in terms of product protection, preventing competitors from using the same product technology, and focusing on competitors' products. Patent layout should avoid falling into the misunderstanding of patent layout such as one product, one patent (also including dual reporting of invention and utility model), invention patents are better than utility model patents, and utility model patents are better than design patents.
The "planning" and "strategy" of the patent layout are carried out on the basis of the analysis of the innovative technology of the enterprise and the collection and processing of the patent application information of competitors. The analysis of the company's own innovative technology includes not only how the innovative technology is patented, but also whether the innovative technology can be protected by trade secrets. Trade secrets and patent layouts are complementary to the protection of innovative technologies. By adding patent layout weapons on the basis of trade secret protection, the effect of using trade secret protection to prevent technical leaks, and using two weapons of trade secrets and patents to combat infringers after leaks is formed.
Use "FTO (Freedom To Operation)" as an important tool or method for intellectual property protection
FTO (Freedom To Operation) means that technology implementers can freely implement related technologies without infringing on the patent rights of others. It is an important means to avoid the risk of patent infringement and learn about competitors' patent applications.
(1) Application scenarios of FTO
FTO search analysis takes the patent application of competitors as the search and analysis target. In addition to analyzing the risk of infringement, it also collects the patent application information of competitors. It has important reference value for the patent application and patent layout of the enterprise. It is often used. In: 1. The whole process stage from product research and development to product listing, provide risk warning and R&D direction reference for product research and development; 2. Enterprise listing, mergers and acquisitions, investment and financing processes, to avoid listing blocked due to patent infringement risks, mergers and acquisitions, investment and financing Failure; 3. In the infringement litigation, for the plaintiff in the infringement litigation, when suing the defendant, it is necessary to analyze whether the defendant’s patent will counteract itself. For the defendant, after receiving the infringement document, it is necessary to analyze whether the plaintiff’s other patents are also valid. There is a risk of infringement.
(2) FTO work steps and precautions
The specific implementer of FTO search needs to have a certain ability to judge patent infringement and patent search analysis, and have a certain ability to predict the stability (that is, the possibility of invalidation) of the searched out risk patent. The main steps of FTO implementation include: 1. Understand the purpose of the company's FTO, determine the scope of FTO due diligence, including the scope of competitors and the scope of target patents; 2. Understand and analyze the company's products and technologies; 3. Search and screen Target patents; 4. Comparing technical schemes, judging the risks of patent infringement, and providing analysis opinions on technology evasion, patent infringement defense, patent invalidation prospects, etc.; 5. Composing and delivering due diligence reports.
Affected by factors such as patent missed inspections and continuous updating of patent data, FTO has its inevitable limitations, that is, any FTO is not permanent. For enterprises, with the development of technological innovation, new FTO searches must be continuously supplemented. This is also the reason why enterprises are suggested to use FTO (as an important tool or means of intellectual property protection) in this article.
The protection of corporate intellectual property rights requires strategic planning and specific tactical operations. The strategy must be consistent with the development direction of the company. Tactically, it must be based on the company’s market competitive advantages and make full use of FTO’s information collection and infringement risk avoidance. The trade secret protection system prevents the leakage of trade secret information, the patent layout of combat weapons and the "staking of the race" and other functions, so that companies can be both offensive and defensive, and constantly maintain market competitive advantages.
 "Practical Guidelines for Overseas Patent Distribution", State Intellectual Property Office, 2014 edition.