What exactly is the patent operation

With the vigorous development of the patent industry, the number and quality of patents in China are increasing year by year, and patent operations have been fully rolled out. So, what are the manifestations of patent operations, what is the actual value to the enterprise, and what are the future trends? This newspaper invites Nanjing Huaxun U.S. patent experts, scholars and corporate CEs to discuss the "past and present" of patent operations at the theoretical, policy and practical levels ".

Theory

Interviewee: Tao Xinliang, Dean, School of Intellectual Property, Dalian University of Technology

Reporter: in terms of the connotation and extension of the concept of patent operation, there is no clear and unified conclusion in the academic circle. Could you please define a patent operation?

Tao Xinliang: Intellectual property operation has become one of the hot words in China, and patent operation is one of the hot words. However, as you said, there is no clear boundary between the connotation and extension of the concept of patent operation itself. Despite many attempts, it is still in a state of opinion, divergent opinions and incongruity.

In my opinion, the essence of patent operation is, in the final analysis, a commercial concept, that is, the comprehensive use of patent legal resources and their technical resources, through technology trade, commercial negotiations and even legal litigation, in the corresponding scientific and technological fields and a series of activities to seek competitive advantages and commercial interests in the commercial market.

Reporter: In other words, patent operation is a commercial activity that comprehensively uses patent legal resources and technical resources. So what are the common manifestations of this kind of commercial activity in our country?

Tao Xinliang: In my country, the current concept of patent operation seems to be expressed on the following meanings at the same time: one is the self-technology implementation of patents, that is, the industrialization of innovative achievements within its own scope; the second is the technology transfer transaction of patents, including The overall transfer of patent rights or different forms of licensing; the third is the investment of patent rights (including equity) and its listing operation; the fourth is the financing of patent rights (including pledge financing) and its capital operation; the fifth is the professional and professional operation of patent rights and patent technology (NPE); the sixth is to control and manipulate the operation of related patent transactions and patent litigation by means of patent or intellectual property special funds (including patent operation funds); the seventh is the operation of patent litigation with comprehensive use of litigation means and supporting measures.

Patent operations can be specifically directed to one or two of them, or they can be generalized to cover their full range. In addition to the first case mentioned above, the latter cases should belong to commercial forms, and these commercial forms have legal relative space, and there are also possible areas of illegality.

Reporter: The seemingly simple patent operation turned out to be such a multi-faceted image. Do these flourishing operating models reflect the different development ideas of the operators?

Tao Xinliang: the concept of patent operation is becoming more and more important in the academic and business circles. On the one hand, it highlights the objective situation of enterprise development, which is more and more inseparable from and inseparable from the patent; on the other hand, it further reflects that relevant enterprises and institutions hope to strengthen patent application and intangible asset management through the operation path of patent operation, In order to obtain market competitive advantage and comprehensive economic benefits of a positive attitude. In recent years, the number of patent applications and authorizations in China has increased significantly, and in recent years, it has taken the lead in the world.

In my opinion, the fundamental business philosophy and basic operating methods of patent operators are almost all "hijacking the emperor to order the princes", that is, "holding the patent emperor, using legal authority to make the market princes", and their ultimate business goals are all attempts. Use the "legal monopoly" of patent rights and its patented technology to realize its competitive advantage and commercial interests. What it dreams of is the corresponding competitive advantage across the river and the "one tree of flowers" or "falling flowers" of commercial interests, and the path through technology trade, commercial negotiations and even legal proceedings is nothing more than the bridge and boat it seeks to cross the river.

Reporter: In other words, no matter what model is adopted, the purpose of patent operation is the same, and in the final analysis, it is directed at market competitive advantages or commercial interests. So, does our current law have specific regulations for patent operations for these complex commercial forms?

Tao Xinliang: Under the existing legal framework, I am afraid that it is difficult to take or abolish a certain commercial form in an across-the-board manner. At most, a certain commercial form can only be "cut or blocked" in accordance with existing legal norms or legal principles. But on the whole, for my country's new and surging patent operation format, timely, reasonable and continuous policy guidance and legal system are needed.

Reporter: For this kind of situation, the voices of foreign academic circles are also endless. For example, U.S. Federal Court of Appeals Judge Posner has written that there are a large number of "wasteful patent competitions" in the United States, which will also encourage the emergence of patent trolls (Patent Troll). What do you think of Judge Posner's remarks about this type of patent operation?

Tao Xinliang: everything will change and even produce some alienation in its historical process, and the historical development of the intellectual property system, including the patent system, is no exception. What Judge Posner said on the other side of the ocean is not something out of nothing or groundless, and it is also of reference and warning value to our country.

In my opinion, our country may be a preferred place to accept foreign patent hooligans and a rich mining area to breed local patent hooligans. The benign development of China's patent system must also guard against and defend against the attacks and harassment of these patent abusers, especially the threat or suppression of malicious litigation.

Reporter: According to a 2013 report by Fortune magazine, high-tech companies have an increasing rate of success in lawsuits against NPE. In the process of "going out", my country's Huawei, Lenovo and other companies have faced patent litigation from the initial fatigue to the current active response and victory. Can we think that patent operation has changed from passive defense against patent rogue attacks to an important weapon for enterprises to take the initiative to win market opportunities?

Tao Xinliang: Authorization is easy to invalidate, abuse is easy to defend. In the past, high-tech companies that have failed as defendants have recently won more and more. On the one hand, the patent judicial policies of various countries have changed accordingly. On the other hand, the litigation response strategies and strategies of high-tech companies in various countries as defendants have been significantly improved, and the quality and application of patents have also been significantly strengthened. But to say that patent operations have become a weapon to take the initiative to win the first opportunity, I think it is too early and may be too optimistic.

Reporter: Can it be understood that benign patent operations must be based on high-quality patents?

Tao Xinliang: I basically agree with this view. "Ask the channel to be so clear, for the source of fresh water", improve the quality and application of patents, optimize the patent system and its ecology, should be the future of China's patent industry and patent operation of the sound development of the catalyst and accelerator.

For many years, the discussion on the relationship between patent quantity and quality has never stopped in our country. The number of patents may need to be just right, it is true that the more the better, the key lies in its own quality and the quality of its use, but also to prevent excessive and improper alienation. On the one hand, moderately improving and adhering to the quality standards and minimum thresholds for granting patent rights, and on the other hand, optimizing and integrating the technical level and value orientation of patent operations will effectively promote the development of my country's patent industry and effectively promote my country's scientific and technological progress.

Policy

Interviewee: Tang Heng, Director of Jiangsu Intellectual Property Research Center and Executive Vice Dean of School of Intellectual Property, Jiangsu University

Reporter: as early as 2008, when the outline of the National intellectual property Strategy was issued, the concept of the use of intellectual property rights was clearly put forward. From the perspective of policy makers, is there any difference between the operation of patents and the traditional use of patents?

Tang Heng: the outline of the National intellectual property Strategy issued and implemented in 2008 clearly puts forward the 16-character policy of "encouraging creation, effective use, legal protection and scientific management". The application here refers to the application of intellectual property rights and the application of the intellectual property system. Among them, the application of intellectual property rights refers to various specific ways to realize the value of intellectual property rights, including patent transfer, licensing, pledge, etc., while the application of the intellectual property system refers to the use of the relevant regulations of the intellectual property system.

In contrast, the concept of patent operation proposed by my country in 2011 is essentially a market activity of asset allocation and operation to maximize the value of patents, which is reflected in the commercial operation of patents. The most significant difference between the application and the current operation.

Reporter: The industry calls 2011 the "first year of patent operation". What are the main factors affecting the rise of patent operation subjectively and objectively?

Tang Heng: Indeed, 2011 is a starting point for the rise of patent operation recognized by the industry. With the process of innovation and development in China, the majority of enterprises as the main body of the market have a stronger demand for realizing the value of innovation. Patent operation can give full play to its rights while realizing technical solutions. it can produce a value-added effect different from the single technology itself, which is undoubtedly a more efficient mode to realize the value of innovation.

On the other hand, with the in-depth implementation of the national intellectual property strategy, the quantity and quality of patents in China have been rapidly improved, and patents have gradually formed a certain accumulation, which has laid the foundation for the development of patent operation.

Reporter: In recent years, what policy guidance measures have been introduced by Chinese government departments for patent operations?

Tang Heng: Judging from the current policies and measures issued by relevant departments, it can be summarized into three levels.

The first is to face the market subject, stimulate the vitality of the market subject of patent operation, and enhance the ability of patent operation service. For example, the "Work Plan for the Cultivation of Intellectual Property Demonstration Enterprises" and the "Work Plan for the Cultivation of Intellectual Property Advantage Enterprises" formulated and issued by the State Intellectual Property Office both regard patent operation as an important part of enterprise exploration and practice.

The second is to face the industry level, encourage industrial patent operation activities, improve the level and level of operation. For example, the State Intellectual Property Office has successively issued policies related to the development of the patent navigation industry, "Guidelines for the Application of National Patent Navigation Industry Development Experimental Zone (Trial)" and "Guidelines for the Application of National Patent Collaborative Application Pilot Units (Trial).

The third is infrastructure-oriented, providing supporting services and a legal environment for patent operations. At this level, everyone is most familiar with the "Several Opinions of the State Council on Accelerating the Construction of a Powerful Intellectual Property Country under the New Situation", which puts forward "accelerating the construction of a national intellectual property operation public service platform".

Reporter: if we analyze this series of policy measures according to this logic and progressive relationship, can we think that China's policy-making orientation is to take enterprises as the main body of patent operation, promote the construction of strong enterprises through operation, and then form a strong enterprise alliance?

Tang Heng: Yes, it is indeed such a progressive logical relationship. At present, a series of policies and measures for patent operation in China are actually centered on the improvement of the patent operation ability of enterprises. Around this core, it is supported from many aspects, such as building a service platform to maximize the value of intellectual property rights, improving the ability of service institutions, improving the mode and process of operation, and the way of financial support.

Reporter: but we have also noticed that compared with the patent operation work in developed countries, China's patent operation work has just started, and the operation mode is not rich enough. What are the main problems leading to this situation?

Tang Heng: I can give an example to illustrate. Not long ago, we organized a survey of the second batch of national intellectual property demonstration enterprises in the country, and found that even these demonstration enterprises generally did not regard intellectual property as an asset, and lacked the need to revitalize assets and amplify value. Therefore, it can be seen that although the policy is guided, the enthusiasm of Chinese enterprises is not high enough, and the vast majority of enterprises do not have a strong demand for patent operation. in particular, there is not enough understanding of the role of patent operation in promoting and promoting commercialization and capitalization operation.

Of course, we should also see that the current domestic patent operation also lacks the support of professionals. We should strengthen the education of patent operation methods and modes, cultivate professional talents and improve the operation ability of service institutions and enterprises, give policy support in these aspects, and strengthen the systematization and systematization of relevant policies, so that the policies can support each other and produce better synergy effect.

Reporter: from operation to strong enterprises and then to powerful countries, what role will China's patent operation play in boosting economic and social development in the future?

Tang Heng: Through patent operation, enterprises can be promoted to establish an enterprise innovation management system and operating mechanism that adapts to market competition, realize the diversification of investment entities, and improve the efficiency of innovation investment. Patent operation can also promote enterprises to form industrial alliances with intellectual property rights as a link, share the value of intellectual property rights, cultivate and drive more strong intellectual property enterprises, and realize an industrial power supported by intellectual property rights.

If patent creation is the cornerstone, then patent operation is the channel, the channel to value realization. Realizing the incentive effect of the intellectual property system through patent operation, stimulating greater enthusiasm for innovation, and cultivating strong intellectual property enterprises can achieve a breakthrough in the construction of an intellectual property power, and ultimately build a sustainable development mechanism for independent innovation.

Practice

Interviewee: Nanjing Huaxun Intellectual Property Consulting Co., Ltd.

Reporter: We learned that last year, Qixingtian successfully acquired 218 display technology patents from Japan Seiko and then launched the "patent headhunting" model. The company has experienced explosive growth. Is this growth driven internally by the company, or is it due to the external needs of the general environment?

The reason why the company can develop rapidly, I think it is the general trend. China has been engaged in patents for decades, and it has already established a certain foundation. In the past, more emphasis was placed on applications, focusing on quantity, and doing the basic work of popularizing patents. Now, we are beginning to return to the essence of patents and emphasize the practical side of patents, which is a great progress and a step that has to be taken.

At the end of 2012, when I was engaged in the first-line patent litigation business in the United States, I realized that Chinese enterprises were constantly encountering troubles in the field of foreign-related patents in the process of going out, while there was a lack of local market institutions that could provide relevant professional services in China. There is a particular shortage of local talents who can operate US patent affairs on the front line. At the same time, the strength of my country's scientific research and manufacturing fields is constantly increasing, and there are more and more original inventions and technological innovations, and the impact is increasing, but it is difficult to "go global" to achieve patent protection and high-value benefits overseas. From the perspective of internal needs and external environment, these two things need someone to do. At the time, I thought that even if I didn't come back to do it, someone else would come back to do it one day. This judgment proved to be correct.

After returning to China, judging from the development of enterprises and the changes in foreign and domestic policies and market environment in recent years, we have caught up with an appropriate time. Take overseas patent operation as an example. Since we acquired 218 display technology patents from Japan Seiko Group last year and operated them in China, we have continuously consulted customers who need overseas patents. Not long ago this year, we successfully operated a certain scale of overseas patent package acquisition for domestic customers. The growth in business demand shows that we have the pulse of the market in the field of overseas patent operations. In fact, in recent years, the most active buyers of patent assets in the North American and European markets have been companies from China. This momentum only emerged after the global economic crisis in 2009, which was unimaginable before.

In addition, when recruiting on campus, many masters and doctors from prestigious universities will give up some other good opportunities to engage in patent work, which also illustrates the prospects of China's patent operations.

Reporter: in your opinion, which kind of enterprises are the most active in intellectual property operation in China?

In recent years, the field of mobile Internet has been the most innovative and active field. Enterprises and service models in this field emerge in endlessly in China. These enterprises often face greater overseas patent risks due to cross-border and cross-regional reasons. Such enterprises often have more demand for overseas patent acquisition, which is used to resist potential litigation or negotiate terms with other foreign competitors. The stronger of these enterprises often become buyers of overseas patents. So before Alibaba in the United States before the public offering had a big acquisition of patents.

In contrast, the overseas patent demand of innovative enterprises and start-up technology enterprises is more of the demand for overseas patent layout and protection of their core technology. They have very good technology, and their products are both domestic and overseas, which makes them have to strengthen their overseas intellectual property protection. Of course, high-value overseas patents are also intangible assets for innovative enterprises, and they also have many potential operational values for enterprises.

Reporter: In the cases you know, what are the main differences between overseas patent operations and domestic patent operations?

Our main business is oriented to the overseas patent protection and patent acquisition needs of Chinese enterprises, scientific research institutions and universities. The environment in this field is still quite different from China's local IP operating environment. In the past, I used to compare a set of figures. The average price of US patents is about 250000 to 300000 US dollars per piece, while the average price of Chinese patents is less than 20000 yuan per piece. The huge market price difference will determine whether the enterprise's patent operation mode can continue.

In addition, overseas patent operation also has its own market environment and rules. The patent market in Europe and the United States (especially the United States) is well developed, and many links such as patent intermediaries, technology research and development institutions, and patent service institutions are mature, and they also have their operating rules. Overseas patent operations are more about dealing with such an environment, while also following its rules to do things.

In recent years, China's local patent operating environment has also improved rapidly. The price of local patents and the amount of patent litigation are also increasing. The intensity of patent protection in China is also increasing, and people's patent awareness is also improving. Many of the entrepreneurs and capitalists I met are familiar with intellectual property and intellectual property operations. These improvements are undoubtedly good for intellectual property operations.

Reporter: Looking forward to the future, what do you think should be the most important thing for the patent operation of Chinese enterprises? What is the strongest demand?

In recent years, the number of patent applications in China has continued to rise, which is gratifying, but in terms of patent operation, more attention should be paid to patent quality. In patent transactions, patents with weak innovation, narrow protection scope and poor stability are difficult to sell at good prices, and even no one cares about them. In patent litigation, the patent that can stand the test of court debate is the real killer patent.

In the field of patent operation, it is also necessary to follow the bottom line of patent value. Patents with low quality naturally lack the value of operation, not to mention how to operate and obtain profits. In addition to the quality of patents, the protection of patent law is also the basic condition for the sustainability of patent operations. China is constantly strengthening the protection of intellectual property rights, and is advancing rapidly in the fields of legislation, litigation, and law enforcement. Although this still needs a process, in the long run, it is undoubtedly gratifying for China's intellectual property operations.

China only had patent legislation in the early 1980 s, and the concept of patent operation appeared later. Local patent operation still faces many practical problems that need to be solved step by step. We should thoroughly study the experiences and lessons of developed countries and regions, learn from the successful operation models and experiences of overseas countries, and integrate with overseas countries more quickly. On the whole, it can be said that "the future is bright and the road is not smooth".