Some people like to divide patents into defensive patents and offensive patents.
The so-called defensive patent is a patent that is laid out on the technology that you are already using or may use in the future. Preventing infringement from all directions is the main purpose of defensive patents.
The so-called offensive patents are more about laying out technologies that others may adopt or even use in the future. It doesn't matter whether you use it yourself or not, whether you have relevant technology or not, and attacking others is the main purpose of offensive patents.
However, this perception is very one-sided, and as a result, many low-value or even negative-value patents have been generated.
From the perspective of patent value, patent right is a kind of exclusive right, and the most powerful thing about patents is that they can prohibit others from using patented technology without permission.
Patented technologies are technical solutions used to solve specific technical problems. If we compare applying for a patent to contracting a highway to a specific technical problem, the value of a patent is that it can prohibit others from taking that highway without permission.
For the highway to realize its value, there must be other people who will take it, so that we can receive tolls from others, or indirectly achieve our own goals by asking others to change lanes and increase the cost of others.
If no one else is going to take this road at all, then the value of contracting this road is zero.
The same is true for patents, if a patent wants to realize its value, others must use the patented technology.
If a patent is used by many people, then the value of the patent will be high; If no one else is going to use a patent, then the value of the patent will be low.
From the definition of defensive patents and offensive patents, offensive patents are only valuable if they are laid out in "technologies that others may adopt in the future, or even are using".
However, a purely defensive patent, that is, a patent that only considers whether the patent scheme is compatible with one's own product or technology, and does not consider whether others will use it, no matter how well written and good it is, its value is also very low.
Note: This article discusses the essential value of patents, and does not discuss the value of patents as carriers of technological achievements and publicity materials. This article will not discuss patents that almost do not exist in reality, such as so-called misleading patents and confusing patents.
There is a paradox that a purely defensive patent can neither prevent infringement nor prosecution of you.
An effective defensive patent must also be an offensive patent at the same time. Even if a defensive patent wants to achieve the role of defense and deterrence, it must be laid out on the technology that others may adopt in the future, or even use in the future.
When you have offensive patents that are based on technologies that you are using and that others may adopt or are using in the future, you can prevent infringement by others.
This is easy to understand, when focusing on the patent layout of one's own products, it is necessary to consider and cover the various technical routes that others may adopt in the future, so as to prevent infringement by others.
If your patent solution is exactly the same as your product, unless others copy it without making any modifications, it is likely to circumvent your patent, that is, not infringe.
Note: Except when the product features are too simple, such as the famous ** rod patent, it is difficult to do it if you don't want to do it.
When your patent is based on "technology that others are using", and others sue you for infringement, you will be able to fight back. Offense is the best defense.
On January 17, 2023, Huawei submitted an administrative ruling against Xiaomi for infringement of four of its patents; Xiaomi immediately filed a request for invalidation of four of Huawei's patents, and on July 21, 2023, Xiaomi submitted an administrative ruling for infringement of six of its patents. On September 13, 2023, Huawei and Xiaomi announced that they have reached a global patent cross-licensing.
Xiaomi countersued Huawei for six patents, which involve touch screen misoperation, short message merging, camera, screen display, etc., which are the technical solutions that many mobile phones are using.
Imagine, if when Huawei sues Xiaomi, Xiaomi only has a bunch of "defensive patents" that fit its own products but are not used by others, but no offensive patents that can be used to fight back, then there is a high probability that it can only be beaten immediately.
Therefore, a strong enterprise must have offensive patents, just as a strong country must have a nuclear **; The purpose of nuclear ** is not to "war", but to "stop war".
When you are in the position of a technology leader, the technical solution you use now may be the technical solution that the other party may adopt in the future.
When the technical route adopted by oneself and others is basically the same, the future technical route of others is the future technical route of oneself.
Therefore, when the technical route of oneself and others is basically the same, the layout of defensive patents is often also the layout of offensive patents.
This is how many companies' offensive patents come about: they didn't think so much about it at the beginning, they just laid out the patents around the technical solutions they were using and might use in the future, and they didn't think that these patents would eventually become offensive patents.
In the second case, the technical route adopted by yourself and others is different
For example, although your own and other people's products are similar, the principle and intrinsic are different, and the technical route is different. For example, LONGi and Aiko both make BC cells, but LONGi is HTBC (composite passivated back contact cell), and Aiko is an ABC full back contact solar crystalline silicon cell.
For example, oneself and others are business rather than product competition, and the product is originally very different, and the technical route is even more different. For example, home projectors and laser TVs are two different products, but there is also competition to a certain extent.
When the technical route adopted by oneself and others is different, it is difficult for others to take technical routes in the future, and the technical details are even more difficult. And it is unrealistic to lay out patents without technical details.
Therefore, when the technical route adopted by oneself and others is different, it is almost impossible to target the layout of offensive patents through ordinary methods.
In another case, if the applicant has a sufficient budget, he can apply for a patent for all the implementation methods based on the company's product technology, regardless of the 3721, and maybe someone will step on the pit in the future.
Third-rate enterprises sell coolies, second-rate enterprises sell products, first-class enterprises sell patents, and super-first-rate enterprises sell standards".
When one or more of the standards in the standard need to be realized through a certain technical solution, and the technical solution happens to fall within the scope of protection of the patent, a standard essential patent is formed.
Enterprises usually have to comply with the standards to ensure the compatibility and interoperability of the products; If the standard is followed, it is necessary to adopt the patented technical solution involved in the standard.
In other words, as long as a patent is a standard essential patent, other players in the industry must use the patented technical solution, and this patent becomes a strong offensive patent.
Compared to other methods, making a patent a standard essential patent is equivalent to:Regardless of whether you will take this road in the first place, you will have to take this road in the future.
For example, on August 22, 2016, the first 5G coding conference was held in Gothenburg, Sweden, and major communication companies submitted their own coding technology solutions
The Chinese camp, led by Huawei, proposed the "polar code" encoding technology;
The U.S. camp, represented by Qualcomm, advocates the use of LDPC (Low-DensityParity-Check) encoding technology, and Samsung, Nokia, Intel and other companies support this scheme;
Ericsson and Orange are the representatives of the European camp, which favors the Turbo code scheme.
For the long code and short code of the data channel, the participants mainly chose four schemes:
Only the LDPC code (Qualcomm dominant) is required;
Only the polar code (led by Huawei) is required
LDPC code for long code, turbo code for short code;
LDPC code for long code and Polar code for short code.
Although Lenovo, Motorola and a series of Chinese companies all stood in the camp of Polar code at this meeting, after several days and nights of fierce debate, the meeting still decided that the data channel code should be based on Qualcomm's LDPC code.
In terms of LDPC code, Samsung, LG, Sony, and Qualcomm have the most patents, Huawei has less, and Qualcomm has the next game first.
The price paid by Qualcomm was to give up the control channel code. Therefore, in terms of control channel coding, Huawei's polar code is used as the standardHuawei has 100 patents related to Polar codes, while Samsung and Qualcomm have only a few dozen.
It should be noted that, on the one hand, most SEPs need to be licensed in accordance with the principle of fairness, reasonableness and non-discrimination (FRAND);On the other hand,With the exception of telecommunications and audio-language fields, there are very few SEPs declared in other fields.
Method 3: Obtain the technical secrets of others and apply for patents
A more legitimate means is to know the technical details of another person's product or technology by reverse engineering, and if the other party has not yet applied for a patent, and the technical solution is still novel, then apply for a patent.
Reverse engineering here refers to the disassembly, mapping, and analysis of the product obtained from public channels by technical means, so as to obtain the relevant technical information of the product. But reverse engineering is only legal if the following conditions are met:
The object of reverse engineering is lawfully obtained, such as the purchase of a product that is publicly sold on the market and the disassembly analysis of the product, which is a means of fair competition;
Reverse engineering itself must not violate contractual obligations, although the object of reverse engineering is legally obtained, but if the acquirer has promised not to carry out reverse engineering, then he loses the right to reverse engineering;
The person who carries out the reverse engineering cannot be obliged to keep the technical secrets confidential, and the technical personnel who have jumped from the competitor enterprise cannot participate in the reverse engineering of the competitor's products.
In this way, after reverse-engineering technology that someone else is using, it may be possible to apply for its own patent.
In addition, some companies will also obtain the technical solutions adopted by competitors through legal methods such as exhibitions and public documents, combined with technical analysis, and apply for their own patents.
Therefore, enterprises should apply for patents in a timely manner for the technical solutions they are already using; Once a patent is applied for by others, you can only continue to manufacture or use the patented technical solution within the original scope, and you cannot expand the scale.
All of the above are legitimate means, but in reality, there are also cases of stealing other people's technical secrets and applying for patents. For example:
Dehai Pharmaceutical Co., Ltd. is the legal holder of the technical achievements of the drug "Gastrodia Shouwu Tablets", and the prescription and process of the drug are protected by trade secrets.
Li Yehua stole the relevant technical information of "Gastrodia multiflorum shouwu" and submitted an invention patent application for "a preparation of gastrodia shouwu and its preparation method" to the State Intellectual Property Office in the name of Huang Hongbin on June 16, 2004.
The final judgment of the case held that Li Yehua was sentenced to two years and six months imprisonment, suspended for three years, and fined 50,000 yuan for using improper means to obtain trade secrets and use them in patent applications, resulting in the disclosure of the dosage ratio of each ingredient in the prescription of "Gastrodia Shouwu Tablets", which caused heavy losses to Dehai Pharmaceutical Company, and constituted the crime of infringing trade secrets.
* The future technical route of others is very difficult; In many industries, it is almost impossible to make a patent a standard essential patent; It is even more difficult to obtain the technical secrets of others through legitimate means.
Therefore, many people retreat to the next thing, and make a patent layout on the prior art that others are using, or even try to patent on the prior art that is common in the industry.
Although this is unethical, it does have the basis of a patent layout. What's more, once such a patent is granted, it will make it very uncomfortable for others to use the patented technology.
There is one of the biggest difficulties here: how to obtain patent rights based on prior art.
In order to solve this difficulty, many applicants are eyeing the "choice of invention".
According to the Examination Guidelines, "Selection of an invention refers to the purposeful selection of an invention within a narrow range or individual that is not mentioned in the prior art from a wide range of disclosures in the prior art." The unforeseen technical effects of the choice are the main factors to be considered in judging the inventive step of the invention."
Based on the above provisions, as long as the applicant claims that his parameter range was purposefully selected, and there is evidence to prove that the effect of the choice is significant, it is very likely that the patent will be granted.
Because many of the technical details in practice are not recorded in the literature, the examiner is likely to not be able to retrieve the parameter range you selected, and at the same time, the examiner will not do experiments to verify the technical effect.
At the beginning, the applicant was relatively honest, just choosing a specific parameter, for example, the thickness of the coating is a b, the ratio of the material is c d, and then providing some experimental data to "prove" that this choice is valuable.
However, it was later found that this was not easy to authorize, and it was easy to think that it was "easy for a person skilled in the art to think of". So the modus operandi has been upgraded: multiple parameters are related, and then the scope is limited.
For example, in a granted patent, the core scheme of independent claim 1 is to control the OI value of the cathode diaphragm to be less than or equal to 150 and to control the product of the OI value of the cathode diaphragm and the areal density of the cathode diaphragm to be 0015 between 4.
That is, the OI value of the positive diaphragm and the areal density of the positive diaphragmEstablish a product relationship, and thenLimit the range of the product。In this case, it is basically difficult for the examiner to search for the prior art, because there is no theoretical basis for whether this product is related to the dynamic performance of the battery. It's just that the applicant chooses two parameters and then forcibly establishes the relationship.
After the patent was granted, because many batteries in the industry have "the product between the OI value of the positive diaphragm and the areal density of the positive diaphragm is 0."015 between 4" so can hit a large number of others.
The Fuzhou Intermediate People's Court once compensated 20.1 million yuan in the first trial of this case. In this case, the patent was invalidated several times, but it was not until the last time that it was invalidated on the grounds of insufficient disclosure.
Similar patents exist in large numbers in the lithium battery industry. Pan Xueping, a deputy to the National People's Congress, once sent a letter of suggestion to the State Intellectual Property Bureau, which mentioned:
There is no shortage of enterprises in the lithium battery industry that apply for patents through data fabrication and the writing of complex formulas using several parameters, and the prior technologies that have been widely used in the market are included in the scope of patent protection and authorized."
This type of patent has two major characteristics, one is that the formula is commonly used in the claims, and the other is that the theoretical basis is rarely mentioned in the specification, but many embodiments and proportions are provided.
Normal structural patents rarely use formulas to define the structure, and more about the structure and connection relationship; There won't be a lot of experimental data either.
This is not the first of its kind in China.
At the end of 2018, Oakes bought Toshiba's compressor patents and sued Gree Electric for infringing those patents. Previously, the Ningbo Intermediate People's Court and the Hangzhou Intermediate People's Court ruled in the first instance that Gree Electric Appliances should pay Oaks a total of about 2200 million yuan.
Patent ZL00811303The core point of claim 1 of 3 is that "the ratio of the total area of the groove part between the grooves forming the stator core and the coils in the stator of the motor unit to the entire area of the gas passage is set to 0."3 or greater".
In December 2023, the Supreme People's Court made a final judgment on the invalidity of the above-mentioned patents. In the adjudication, the above-mentioned area ratio was considered to be an "unconventional parameter feature", and at the same time, the Supreme People's Court gave a "aboutClaims with features of non-routine parametersrules for judging novelty". It mentions:
If the parameters in the claims of the patent are unconventional parameters that have not been used in the prior art, the patent documents do not fully disclose the effect of the parameter features on the structure or composition of the product, and the comparison documents have disclosed the same invention ideas as the patent, which may make it difficult for those skilled in the art to distinguish the products protected by the patent from the prior art.
In this case, in order to prevent the patentee from concealing the fact of lack of novelty by redefining the existing product features in the form of unconventional parameter features, and to safeguard the interests of the public, the patentee or the applicant should prove or fully explain the difference between the two.
If it is unable to prove or adequately explain the difference between the two, it may make an adverse presumption that the patent claims are not novel with respect to the comparative documents".
In addition, Article 20 of the Patent Law, as amended in 2022, specifically stipulates that "the principle of good faith shall be followed in applying for a patent and exercising patent rights." patent rights shall not be abused to harm the public interest or the legitimate rights and interests of others".
It will be increasingly difficult to patent the prior art that others are using; Even if a patent is obtained, it will be extremely difficult to enforce it.
At the heart of the doctrine of deterrence is the ability to destroy the other side in any situation and to make it known.
One thing that must be considered by patent managers in a business is whether we have offensive patents that can pose a threat to competitors at any time, create a deterrent, and use deterrence to keep the peace.
Otherwise, when your company faces a patent lawsuit and can't find a patent that can be used to fight back, how can you account to the boss at that time?
Shimizu Intellectual Property, focusing on high-quality patent services, focuses on mining intellectual wealth for enterprises.