In economics, there is a term called the "resource curse", which refers to the fact that the abundance of natural resources may be a curse rather than a blessing to the economic development of more countries, and most countries with abundant natural resources grow more slowly than those with scarce resources. Recently, there is also a popular saying that "competition damages competitiveness", which refers to the fact that a person or organization is too focused on competition itself, which will damage its competitiveness in a comprehensive or broader dimension. The "curse" of patent granting discussed in this article is basically similar to the above two situations, that is, when many applicants pursue the purpose of patent granting excessively, they will directly damage the patent rights they have obtained.
In reality, many applicants or patent ** institutions take the final authorization as the bottom line of patent applications, which is indeed a very pragmatic idea in Chinese mainland at present, but in essence, it is also an idea that is extremely contrary to the common sense of the patent system. The fundamental significance of applying for a patent is to realize the monopoly profits of the patentee through the exclusive and prohibitive effects of the patent right, and the realization of these two functions must be based on the premise that the patent can "catch the infringement and win the lawsuit". According to normal market logic, only a fool would do such a thing, and in a normal market country, there will certainly not be such a fool's thing.
But what is the current status of authorized patents in China? Here we only talk about invention patents that have been authorized by substantive examination, and do not talk about appearance and model patents. It can be said that 80 percent of the authorized patents cannot catch the infringement, and 80 percent of the authorized patents that can catch the infringement cannot withstand the multiple invalidations. That is to say, the authorized patents that can not only catch the infringement, but also resist invalidation, and finally win the lawsuit, and can truly play the exclusive and prohibitive role of the patent right, will not exceed 5% of all authorized patents.
So what is it that leads to such a low proportion of genuinely useful granted patents, i.e., authorized patents that can play an exclusive and prohibitive role in patents, in China? Personally, I think that China's unique "patent certificate market" has "made great contributions" to this. With the existence of this "patent certificate market", many applicants will report that they can finally grant a patent when they apply for a patent. Because even if the authorized patent cannot play the exclusive and prohibitive role of the slightest patent right, it can at least bring the use of the patent certificate, and at the worst it can be sold on the "patent certificate market" for money.
However, in reality, it is precisely because of this kind of low-line thinking that many applicants (patentees) have made unprincipled and bottom-line compromises and concessions to the examiner in the substantive examination just to ensure that the patent is authorized or to be authorized as soon as possible, resulting in the final authorized patent, which is greatly discounted in the value of the patent, or even worthless. This is because according to the authorized patent finally obtained by the applicant, it is difficult for the independent claims of the authorized patent to be infringed by others, because a normal manufacturer will not put the technical features described in such independent claims in its own products or methods, that is, in the face of all the technical features of the independent claims of such an authorized patent, it is actually difficult for the accused infringer to fully cover them in real production, not to mention that the accused infringer will use some circumvention designs in real production.
For example, in order to confirm my above argument, let's take a well-known case of patent infringement dispute. This case is Galanz Microwave Oven Electrical Appliance Manufacturing v. MeiG Electronic Technology ((2022) Supreme Law Zhi Min Zhong No. 1584). Although the case was reversed in the second instance due to various reasons, and the accused infringer was judged to be infringing, industry insiders generally believe that the second-instance judgment of the Supreme People's Court in this case is actually not more convincing than the first-instance judgment. Because if there are no other factors, if the litigants of the two parties in the second instance can be evenly matched, the second instance of the case is likely to uphold the original judgment of the first instance, that is, the judgment of the first instance that the alleged infringing technical solution does not fall within the protection scope of the patent in question will be maintained.
So what kind of patent is the patent involved in this case?
It is precisely the kind mentioned by the author, which has a large technical contribution and market value, but in the substantive examination, the applicant (patentee) made unprincipled and bottom-line compromise and concessions to the examiner just to ensure the authorization or obtain the authorization as soon as possible, resulting in the final authorized patent, which greatly reduces the patent value and is even worthless.
First, let's look at the application text of the patent claims.
Secondly, let's look at the grant text of the patent claims.
Finally, I would like to talk about the author's feelings and views on the amendment of the above claims.
It is not difficult for careful readers to find that in the reply to the actual trial of this case, the applicant directly put the technical content of subordination 2-5 in the application documents into the revised exclusive right 1 word for word. I don't know if the reader feels the problem with the applicant's (patentee's) attitude towards revision. In the author's opinion, the amendment of the above claim is like someone saying to a tightly wrapped person, "You are wearing too many clothes", and the person immediately begins to take off the clothes wrapped around his body, and in the end there is not even a bottom coat left. Then he proudly said to the person who shouted to him, "Didn't you say that I was wearing too many clothes?" Is it still more? Now you're satisfied. ”
In the process of communication between the applicant (patentee) and the examiner, it is obvious that the applicant (patentee) has made unprincipled and bottom-line compromise concessions to the examiner in order to ensure the authorization or obtain the authorization as soon as possible. On the one hand, there is the problem of irresponsibility of the patentee, and on the other hand, the more important reason is that the applicant's bottom line is too low, as long as it can be authorized, as long as it can be authorized, it is not asked whether the final authorized patent can be used.
In order to confirm the author's above conclusion, let's also take a look at the substantive examination documents of the patent.
That's right, this patent is indeed a one-time successful reply, that is to say, after the applicant completes the first revision and reply, the patent has successfully passed the examination and been authorized, which is probably the best effect pursued by many applicants (patentees). But isn't it, even the ** is off, so what else can the examiner say? Is it possible not to give authorization quickly?
In the reply to the substantive examination of this case, not to mention whether what the examiner said was reasonable, the applicant (patentee) did not dare to raise a single word of objection after receiving an opinion, and completely accepted it in full. On the contrary, if you look at the applicants in the United States, even if they do not authorize, even if they are ultimately rejected, they still insist on what they have seen and argue for it. Because, in the eyes of others, the result of the authorization obtained after excessive compromise and concession is completely useless, and it is completely a burden, not a wealth. However, in China, because of the existence of the "patent certificate market" and the various non-market profit mechanisms behind it, the situation is very different.
Many people may not know and understand the widespread "patent certificate market" in Chinese mainland. In this market, no one will care about the quality of patents, and all authorized patents are almost 1 to 20,000 per piece. Usually the unpaid grant is more expensive, as it is said that the unpaid one can change the name of the inventor. The existence of this "patent certificate market" is largely related to the financial subsidies and non-market incentives for the identification of high-tech enterprises, specialization, special and new enterprises or similar projects. It is said that after a small and medium-sized enterprise is identified as a high-tech enterprise, it can generally obtain more than 100,000 relevant subsidies out of thin air. In China, there are enough enterprises to apply for the best enterprises, it is estimated that there can be tens of millions (the total number of registered enterprises in China is nearly 50 million), if one million of them want to directly obtain patent certificates through the "patent certificate market", then this market is large enough, enough to lead to large-scale abnormal applications. And when the examiners of the CNIPA issue the authorization certificate for this abnormal application, they are actually issuing money to the abnormal applicant, because they can sell 1 to 20,000 ** after getting the certificate. Is it strange that no one does such a low-threshold, fast-making business? This "patent certificate market" is still very active at present, which may be the main reason for the repeated prohibition of abnormal applications, and it is also the main reason why the CNIPA is becoming more and more strict in the examination threshold and is reluctant to issue certificates to applicants easily. Because the CNIPA probably also understands that the issuance of this kind of certificate is to directly send money to these speculative people, which is to help the abuse. The practical difficulty lies in the fact that it is difficult to actually distinguish which application is abnormal, and this distinction is actually meaningless, because there are policies and countermeasures, because the industry of "manufacturing and trading patent certificates" is still in full swing at present. Therefore, the key is not to prohibit abnormal applications, nor to prohibit the purchase and sale of certificates, but to fundamentally eliminate the demand for this kind of patent certificate, that is, not to allow any enterprise subject or applicant to obtain any non-market incentives mainly by relying on the patent certificate itself, that is, to return the value of the patent right to its original face in the market, to clarify the basic attributes of the patent right as a tool of market competition, so that the benefits obtained by any enterprise subject or applicant from the patent right are only in the market, not in the non-market.
Patent transactions are understandable and an important option for patentees to carry out patent operations. However, the "certificate" transaction on the "patent certificate market" is by no means a patent transaction, although the corresponding patent right will be transferred in the "certificate" transaction, but what the buyer and seller do not look at is the patent right itself, but only the patent certificate attached to the patent right. It's like someone trading a title deed, but the house to which the title deed corresponds is only on paper or made of paper. But why is such a ridiculous thing happening? It can also be imagined by its practical feet, that there must be some kind of non-market incentive mechanism behind it. Specifically, in the "patent certificate market", it is obviously because of the above-mentioned financial subsidies and other non-market-oriented incentives for the recognition of high-tech enterprises, specialization, special and new enterprises or similar projects that are widely available in China.
Generally speaking, the "patent certificate market" has "three looks and three non-looks", that is, looking at the technical field, looking at the technical subject, and looking at the date of authorization; Don't look at the scope of protection, don't look at the potential value, don't look at the quality of writing. Although the large number of abnormal patent applications produced by this "patent certificate market" has its obvious inherent characteristics, when it comes to actual applications, those with relevant experience may be able to package an application document that looks very similar, is easy to authorize, and can avoid "abnormal" examination to a certain extent.
The resulting "abnormal", almost ** status quo, simply put, is because there is a "patent certificate market" that can support this status quo, that is, for the applicant, as long as it can be authorized, at least it can bring the usefulness of the patent certificate, and the worst can be sold on the "patent certificate market" for money.
It is precisely because of the existence of this kind of "patent certificate market" that underpins the bottom line, and the excessively low bottom-line thinking derived from it, as long as it can be authorized, has formed the real "curse of patent licensing" in Chinese society today, that is, in order to authorize, it has harmed the patent right itself, resulting in the whole country and society, and a lot of manpower, material and financial resources are wasted on the application and maintenance of many ultimately useless patent rights, making the "patent certificate market" like a malignant tumor frantically sucking on social normalcy body"; As a result, "abnormal patent applications" have been repeatedly banned and emerged one after another, and as a result, many valuable patent applications by the CNIPA have also injured the innocent due to "abnormal" examination, which has greatly damaged and damaged the enthusiasm of applicants and innovators to apply for patents and protect innovation.
The serious problem caused by the above results is that our current patent system may actually be running on a path that runs counter to Article 1 of the Patent Law, which states that "this Law is enacted in order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, enhance innovation capabilities, and promote scientific and technological progress and economic and social development".
Patent application and protection is originally a market behavior of market players to "exchange disclosure for protection" and seek exclusive and prohibitive market monopoly positions to obtain market competitive advantages, and the non-market incentives involved in this will inevitably lead to abnormal patent applications. The current contradiction is that on the one hand, we are continuing to do various non-market incentives for patent applications, and on the other hand, we are increasing the number of layers to crack down on abnormal patent applications. This kind of "spiritual internal friction" at the national level is probably the biggest and most terrible internal friction in this society. Therefore, the "curse of patent licensing" must be prevented, and the reasons for the emergence of this "curse" must not be ignored.
Author: Zhang Yinggang.
Edited by Eleven