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“无效不掉”的自拍杆专利,带你重新认识实用新型专利的价值

  • Categories:最新消息
  • Author:华讯知识产权
  • Origin:
  • Time of issue:2018-10-12 14:53
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(Summary description)任意收缩,收纳自如,自拍杆已经成为很多人居家旅行不可或缺的重要物件。但是,很少人会想到,自拍杆的专利“一种一体式自拍装置”,是一件被提出22次无效宣告请求,已然屹立不倒的专利,当之无愧的实用新型王牌专利。对于专利,很多人都存在这样的误区,认为专利都可以被无效。确实,现在很多稳定性不高的专利,被无效的概率很大。但是,如果任何专利都能被无效,那么企业也没必要投入那么多人力物力申请专利了。而自拍杆专利的

“无效不掉”的自拍杆专利,带你重新认识实用新型专利的价值

(Summary description)任意收缩,收纳自如,自拍杆已经成为很多人居家旅行不可或缺的重要物件。但是,很少人会想到,自拍杆的专利“一种一体式自拍装置”,是一件被提出22次无效宣告请求,已然屹立不倒的专利,当之无愧的实用新型王牌专利。对于专利,很多人都存在这样的误区,认为专利都可以被无效。确实,现在很多稳定性不高的专利,被无效的概率很大。但是,如果任何专利都能被无效,那么企业也没必要投入那么多人力物力申请专利了。而自拍杆专利的

  • Categories:最新消息
  • Author:华讯知识产权
  • Origin:
  • Time of issue:2018-10-12 14:53
  • Views:
Information

     任意收缩,收纳自如,自拍杆已经成为很多人居家旅行不可或缺的重要物件。但是,很少人会想到,自拍杆的专利“一种一体式自拍装置”,是一件被提出22次无效宣告请求,已然屹立不倒的专利,当之无愧的实用新型王牌专利。

对于专利,很多人都存在这样的误区,认为专利都可以被无效。确实,现在很多稳定性不高的专利,被无效的概率很大。但是,如果任何专利都能被无效,那么企业也没必要投入那么多人力物力申请专利了。而自拍杆专利的存在,也给存在这种观点的人上了生动的一课。

这件专利能让自拍杆使用时无需临时组装,折叠收纳无需额外占用空间。像华为、OPPO、vivo、小米、三星等大企业,都采用这一专利技术生产自拍杆,每年创造上亿的销售收入。但是随着自拍杆市场的壮大,市场上出现了大量的仿制侵权产品。因此,专利权人深圳源德盛塑胶电子有限公司(下称源德盛)委托专业机构在全国开展了大规模的诉讼维权。截止到2018年8月24日,在网上能检索到的与源德盛专利纠纷相关的判决书达427份,起诉地遍布全国24个省市。其中诉讼涉及的部分被告包括:柳州市璟天商贸有限公司、肥西庐西通讯器材经营部、天津承数科技有限公司,还包括中国联合网络通信有限公司宁波市分公司、杭州阿里巴巴广告有限公司、中国电信股份有限公司泉州田安路营业厅等知名企业,基本上是全国各地的公司、超市、卖手机的地方、电商、通信运营商等都成了被告。

针对专利权人的维权行为,作为有效抗辩手段,多地请求人轮番提出专利无效宣告请求。在这些案件中,不仅请求人遍布全国各地,而且提出无效宣告请求的理由也是五花八门。无效宣告涉及的请求人包括:北京华信通电讯,余姚市豪涵电器,广州一小时通信,深圳市时商创展科技等。而在宣告无效的理由中,有的认为涉案专利不具备专利法第二十二条第二款规定的新颖性、第三款规定的创造性;有的认为权利要求书不满足专利法第二十六条第四款的要求,权利要求未得到说明书的支持,没有清楚限定权利要求的保护范围;有的认为独立权利要求缺少解决技术问题的必要技术特征,违反了专利法实施细则第二十条第二款的规定;还有的以同样的理由和证据再次提出请求;也有个别请求人提出无效宣告请求,却未结合证据具体说明无效宣告的理由。

  截至目前,除5件视为撤回或视为未提出外,17件已作出审查决定的案件中,除第1份无效决定宣告权利要求1无效,其余均在权利要求2-13的基础上维持专利权有效。国家知识产权局专利复审委员会相关负责人介绍,涉案专利无效宣告请求系列案突出体现了实用新型专利创造性判断、网络证据公开日期的认定,以及“一事不再理”原则的适用等法律问题。其中,实用新型的创造性判断最为关键,在已作出审查决定的17件无效宣告请求案中,16件都涉及到这一问题。

现在来回顾专利本身,涉案专利如下图所示:

                            图1:体现发明点的说明书附图

权利要求的内容如下:

 

 

 

而权利要求2就是那个经过多次无效也无效不掉的权利要求。该项权利要求将正确的技术方案清楚地表达出来,将其核心的关键点进行了描述,平衡了专利保护范围与技术贡献之间的关系,而这正是该专利权利要求稳定性高的秘诀。

而该专利权稳定的另一个秘诀在于,实用新型专利对创造性的判断,实用新型对创造性的判断依据为“具有实质性特点和进步”,相比与发明专利对创造性的判断依据“具有突出的实质性特点和显著的进步”,其要求要低一些,也正是这样的原因导致其无效难度更大。

在现实中,很多代理所建议申请人一案两请(发明和实用新型同时申请),好处在于可以先获得实用新型的授权,进行专利权利的保护,等发明授权之后,放弃实用新型专利权,使得实用新型和发明在权利保护上有一个接续的过程。但是,这样建议的基础在于,专利的创造性较高。拿这件案件举例,如果该案件在申请时进行一案两请,则发明专利在审查过程中很可能被驳回,因为在该专利申请时,已经有了自拍杆的技术,其区别点在于:缺口和弯折部,对于本领域技术人员而言,面对收容问题容易想到弄个缺口和弯折部,其创造性将会受到审查员的质疑。如果发明申请没有授权,对比文件将会被拿来无效实用新型,会让人的第一印象感觉创造性不高。在本案的高明之处就在于,只进行实用新型专利申请,没有这个不好的第一印象,专利权的稳定性也高很多。

虽然涉案专利被提出专利无效宣告请求的次数多达22次,但不得不说,这只是专利权人与侵权者在市场竞争中的正常博弈。在日益加剧的市场竞争中,这将会一种新常态。在这场博弈中,高质量的专利创造、申请选择、审查和保护,让专利权人笑到了最后,也让实用新型专利成功地垄断了一个行业。

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Electronic

Electronic Arts pledges free use for five accessibility patents

Electronic Arts pledges free use for five accessibility patents Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.  Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version. Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.  The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The code of the mentioned technology is published on EA’s GitHub, and it is open to all developers. Thus, the developers can use it or adapt it for their games without spending the costs to research. It is good that EA shares the patents for free use and aims to create an accessibility-increased gaming environment for players. However, it is not “unconditional” to use the listed patents. In the pledge, EA mentioned that it may terminate the promise for a specific party which files a patent infringement lawsuit or other patent proceedings against EA. We can see parts of EV’s ambition behind the announcement—to build a large game developer league and a community of shared interests.     Reference: https://www.ea.com/commitments/positive-play/accessibility-patent-pledge https://iknow.stpi.narl.org.tw/Post/Read.aspx?PostID=14562 https://www.polygon.com/22639469/apex-legends-electronic-arts-patent-pledge-accessibility-developers https://www.theverge.com/2021/8/24/22638535/ea-accessibility-patent-pledge-apex-legends-ping-system https://www.gamesradar.com/ea-secures-a-patent-for-the-apex-legends-ping-system-and-its-giving-it-away-for-free/ https://dotesports.com/apex-legends/news/apex-legends-ping-system-is-now-patent-free-for-accessibility https://www.nintendolife.com/news/2021/08/apex_legends_ping_system_now_patent-free_as_ea_announces_accessibility_pledge Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.    Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version.   Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.    The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The
2021-10-22
The

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully!

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully! In response to the call for building a strong country with intellectual property rights, at 2 o'clock in the afternoon of October 21, the forum on "China's reform measures related to intellectual property rights and new trends in patent litigation" will be successfully held in Nanjing Jiangbei New District Industrial Technology Research and Innovation Park. The event was hosted by the Science and Technology Innovation Bureau of Nanjing Jiangbei New Area Management Committee, Nanjing Jiangbei New Area Industrial Technology Research and Innovation Park, Nanjing Intellectual Property Rights Protection Assistance Center Jiangbei New District Center, Nanjing Huaxun Intellectual Property Consultant Co., Ltd., Nanjing Intellectual Property Co-organized by the Protection Center (Nanjing Intellectual Property Rights Protection Assistance Center), Taiwan Pharmaceutical Development Association, and Gene Online. The director of Nanjing Intellectual Property Protection Center, Mou Xiaojian, delivered a speech. Director Mu expressed his warm congratulations on the holding of this event and introduced in detail the new pattern of intellectual property protection in Nanjing. He said: At present, Nanjing has implemented a rights protection assistance network in the municipal area. With full coverage, Nanjing Intellectual Property Protection Center is willing to closely communicate and interact with Nanjing's innovation entities, and provide relevant public welfare services such as rapid pre-review, rapid rights protection, and comprehensive utilization for enterprises in need. In addition, Huang Funan, CEO of Gene Online, was unable to come to congratulate due to the epidemic, and recorded a congratulatory video. In the video, he said: China Innovative Pharmaceuticals has already made many outstanding achievements on the international stage, and these are inseparable from intellectual property rights. The support of the company can also show the importance of intellectual property rights to biotechnology and pharmaceutical companies. This event invites four industry experts to focus on China's reform measures related to intellectual property rights and new trends in patent litigation, discuss with companies and universities, and make arrangements in advance. Dr. Qingchen Hou, general manager of Nanjing Huaxun Intellectual Property Consulting Co., Ltd., introduced the "Guidelines for Building a Powerful Country with Intellectual Property Rights (2021-2035)" and explained his views from four aspects: background, strategic layout, overall requirements, and organizational guarantees. . Subsequently, a detailed analysis of China's patent linkage system was carried out, and compared with the same types of cases at home and abroad, questions were raised: Why should we reward the first person who successfully challenged patents? Not the first person to file a P4 application? And have a series of discussions with you. Director Jiang Haijun of the Intellectual Property Protection Legal Committee of the Nanjing Lawyers Association gave a speech on three points: the problems after the amendment of the patent law, the enforceability of the amount of compensation, and the legal conflicts related to service inventions. Regarding the patent right evaluation report, he emphasized that the patentee, interested party or accused infringer can also proactively issue a patent right evaluation report. "Patent is a work of art that combines technology and law" is a message shared by Mr. Feng Tao from Jiangsu Junbo Law Firm at this event. Mr. Feng analyzes the big data of Chinese patent litigation cases through graphs and examples. Explore. The last topic of the event was shared by Guo Huangying, Intellectual Property Manager of Nanjing Huaxun Intellectual Property Agency (General Partnership)-China's Patent Infringement Judgment Principles and New Developments. Manager Guo explained to everyone the principles of patent infringement judgment and the necessity of patent infringement search and analysis before producing and selling products. In the intellectual property industry, ECCOM has been providing high-quality and professional comprehensive intellectual property services to enterprises and universities one step at a time. It also hopes that under the leadership of the state and the government, it will contribute to the building of a strong intellectual property nation in China. Make a contribution.
2021-10-22
Types

Types of patents that are easily overlooked- Design Patent

Types of patents that are easily overlooked- Design Patent In recent years, as the public’s awareness of intellectual property has increased, people have begun to consciously use the patent law to protect their intellectual property rights. However, in the process of implementation, they often only focus on invention patent and utility model patent, and tend to ignore the protection of design patent. Recently, Midea sued Haotaitai for two models of CXW-300-D998 and CXW-300-D908 Haotaitai brand range hoods In the case of suspected infringement of its design patent (patent number: ZL201930621598.X), the Guangzhou Intellectual Property Court made a first-instance judgment after hearing that it determined that the two products of Haotaitai constituted infringement, and ordered it to immediately stop the infringement and compensate Midea, The company's economic losses and reasonable expenses totaled 360,000 yuan. In fact, appearance infringement cases have occurred from time to time before, such as: "Molly" blind box design patent case, "Siemens" switch design patent infringement dispute case received a compensation of 6 million yuan, three Casio watch design patents were infringed Received a compensation of 8.8 million yuan and so on. The reason why people ignore the protection of design patents, in the final analysis, is that they have insufficient knowledge of design patents. Today, let's take a look at what is protected by design patents and what rights protections can we apply for? Design patent definition: Article 2 of the "Patent Law", design patent, refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of products, and the combination of color, shape, and pattern. Protected range: The shape of the product; the pattern of the product; the shape and pattern of the product; the shape and color of the product; the pattern and color of the product; the shape, pattern and color of the product. Protection period: The term of protection for design patent rights is 15 years, calculated from the date of filing. What are the conditions for applying for a design patent? The design should be aesthetically pleasing Appearance patents should be suitable for industrial applications The design patent application should be novel The design patent application should be inventiveness What are the advantages and functions of design patents? Protect the rights and interests of enterprises in product designs and fight against infringements in market competition. To enhance brand value, the quality and quantity of patents are the embodiment of the company's innovation ability and core competitiveness. Receive consumer recognition. If a company's new product appearance is filed for a patent in a timely manner, its appearance design will enjoy the exclusive right. Nowadays, consumers often choose products with trendy and beautiful appearance when buying their products. Applying for a design patent is a necessary condition for applying for a high-tech enterprise.
2021-09-26
Colopl

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million   This August, Nintendo and a game developer Colopl announced that they have settled for patent infringement regarding White Cat Project (Shironeko Project in Japanese), a smartphone game developed by Colopl. Although both companies did not publicly share exact details of the settlement, at least it is sure that Colopl agreed to pay 3.3 billion yen (about US$30.2 million) as the settlement fee for the proceedings, including the future license of Nintendo's patents.    How did the battle begin?  Being developed and published by a Japanese game developer, Colopl, White Cat Project is a free-to-play action role-playing game for Android and iOS systems. The mobile game was launched in July 2014 as well as got a television anime adaptation in 2020. It is incredibly popular to have more than 50 million downloads. Furthermore, the game is set to receive a Switch version titled "Shironeko New Project".    In September 2016, Nintendo noted the Colopl's game and considered that the game had infringed on several of Nintendo's technology patents. The two companies communicated with each other for over a year; however, Nintendo did not accept the explanations from Colopl, and Nintendo filed a lawsuit against Colopl at the beginning of 2018.    Nintendo claimed that Colopl infringed 6 of its patents. These patents protect touch-screen joystick functionality (patent no. JP3734820), multiplayer connectivity (patent no. JP5595991, JP6271692), confirmation screens in sleep mode (patent no. JP4010533), character attacks based on touch input locations (patent no. JP4262217), and a shadow effect placed on characters hidden behind the game geometry (patent no. JP3637031).   These patents almost cover various ways of game technology, especially the patent  JP5595991 and JP6271692. Their patent family is wide-reaching, and many divisional applications of the family are pending in Japan. They protect a communication game system and its related devices. It is not easy to detect the patent's existence and boundary since this kind of hardcore technique is so common in the gaming field and our daily lives.     The five-year patent war has been settled.  After a five-year dispute, the situation appeared to turn in Nintendo's favor as the Switch maker increased its monetary demands, which convinced Colopl to strike a deal that lets it use the disputed patents. Furthermore, a Switch version of White Cat Project remains in the works at Colopl.    With the extraordinary losses of Colopl, the legal battle between the two companies came to an end.  
2021-09-09
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