LED Risk and Patent Law

Risk of patent law from two major ways, one is the legal risk of patent applications, patents obtained mainly from its effectiveness, including the improper application strategy can not get the right protection of inventions, the claims can not claim the rights unclear and so on; the other hand, the risk is a patent infringement of patents, primarily in the production process patent infringement, the rights of people accused stricken legal risk.

As China's independent innovation capability of continuous improvement, innovation of enterprises according to the patent system to obtain the appropriate legal protection is even more important. But in recent years China's enterprises in international trade in intellectual property issues more and more prominent, especially the sudden emergence of the LED industry access to overseas markets in the face of frequent patent licensing and patent infringement litigation and other barriers to the development of enterprises with serious adverse impact.

LED companies face the risk of international patent law

LED is the most promising development in the 21st century, green lighting, is generally optimistic about the world, the rapid development of LED, many investors have entered. However, the LED's core patented technology is mainly controlled by the United States, Japan, Korea, Germany hand, China's LED patents owned enterprises are mainly Taiwanese-invested enterprises. [I] This is generally value the benefits of innovation and growth to the neglect of the protection LED enterprises face very serious risk of patent law, mainly in:

1, 337 in the United States businesses can use to prevent other countries into the U.S. market LED

"337 investigation" from the U.S. "Tariff Act of 1930," named after Section 337, Congress authorized by the quasi-judicial acts. Under the Act, the U.S. International Trade Commission (ITC) in the prosecution of U.S. companies under the premise of the field of import trade for the "unfair practices" and "improper means" to have broad investigative powers and sanctions at the right. If there is a breach of the terms of respondent behavior, the U.S. International Trade Commission the power to make an exclusion order or injunction. Its effect not only to specific enterprise-related products, may affect the entire industry of related products can not enter the U.S. market.

In recent years, the object of investigations 337 mainly Asian countries, one quarter of the cases involve Chinese enterprises. [Ii] 2008 年 3 月, ITC initiate an investigation violated the United States NO.5, 252,449 franchised businesses, which involve China, Guangzhou, Shenzhen, Hangzhou and Foshan cities, nine LED enterprises [iii], 2009 年 4 months, Xiamen, an LED Enterprise once again be included in the above Section 337 patent list [iv]. 337 investigation cases to the momentum is developing core technology in the weak link in China's LED business has sounded the alarm of intellectual property.

2, the Japanese companies of patent litigation filed in the U.S. companies into the U.S. market worse LED

November 2009, the Japanese giant Nichia LED (Nichia) announced that it has in the United States for China, Hong Kong and Canadian manufacturers of patent infringement litigation. Nichia claimed that the three defendants with violating three Nichia white LED-related patents, including the US patent no.5, 998,925,7,026,756 and 7,531,960, and an LED chip-related patents (US patent no.6, 870,191). Nichia sued by companies including Shenzhen Jiawei Industries Co., Ltd., Jia Wei Technology (Hong Kong) Limited, Jiawei North America. Nichia in the United States Court Eastern District of Texas federal court to submit the complaint documents, said the main purpose of this action is to prohibit these companies continue to sell infringing products, as well as recovery of damages.

3, developed the patent "enclosure movement" accelerate China's enterprises increase the risk of patent applications

To make a technology in the world of multi-national patent protection as soon as possible, the patent examination authority in developed countries are strengthening cooperation and establishing the Patent Prosecution Highway (PPH) in the cooperation model, the Patent Prosecution Highway is a State Intellectual Property Office Intellectual Property Office and other countries signed an agreement between, the way they provide greatly reduces the patent protection in foreign countries for processing time and costs to support the products in the global low-cost and rapid access to effective patent protection. Currently, such cooperation to carry out or pilot the U.S. Patent and Trademark Office (USPTO), Japan Patent Office (JPO), European Patent Office (EPO) and so on.

September 25, 2009, at 21 United States and Europe and other countries and regional patent organizations in Geneva with WIPO international conference to establish a "favorable review of information on other countries to speed on the national or regional patent applications with the possibility of a authorized to make judgments of the network "to reach agreement, the above-mentioned 21 countries and regional patent applications accounted for about 95% of the global total. [V] the opening of the Patent Prosecution Highway, accelerated the developed countries in worldwide patent "enclosure movement."

Mainly concentrated in the core patents LED Nichia Chemical (Japan), Osram (Germany), Christian (USA), General Electric (USA), Toyoda Gosei (Japan) and Samsung (Korea) and other large companies in the hands, mostly domestic applications external patent, its scope of protection falls within the scope of patent protection abroad, and its scope of protection falls within the scope of patent protection abroad, as more than half of the core patents in China are authorized, so there is a big domestic enterprises patent risk. "Patent Prosecution Highway" to the lack of patent applications for time delay strategy of LED technology innovation and patent protection on the road full of thorns.

4, OEM business increased risk of intellectual property rights of domestic and international litigation more

Large domestic enterprises and foreign enterprises in the OEM processing, great attention to foreign intellectual property liability, but the Chinese tend to only consider the risk of infringement of intellectual property rights and ignore orders to enable OEM companies to pay those foreign intellectual property litigation. A battery company in Guangzhou in early 2008, cooperation with Philips, its supply of lithium-iron battery processing. The products in the European market soon, immediately met with the Energizer batteries from the United States blocking. Energizer in patent infringement on the grounds of the product demanded the immediate withdrawal of products from the market. Philips Intellectual Property in accordance with the processing agreement liability provisions, requiring the company come forward to deal with Guangzhou. Energizer by a warning letter is not achieved satisfactory results, then in Germany, filed patent infringement lawsuits against Philips. Guangzhou Company to defense requirements, and bear all litigation costs and attorneys fees. Guangzhou, a battery company lawyers entrusted us with the German co-operation with the company technical staff carefully analyzed and compared to non-infringement of the respondent won.

Battery industry while the international patent litigation OEM processors to the semiconductor industry, has sounded the alarm.

LED companies how to avoid the risk of patent law

As international giants to major countries including China, applied for a number of core technology related to LED patent, therefore, the domestic enterprises, whether the export or domestic-based export-oriented enterprises, from technology development to the development of international and domestic markets , need to take reasonable measures to intellectual property risk control, it will easily reach patent "minefield."

1, technology development or the introduction of the patent phase of risk prevention

Easily lead to business R & D aspects of intellectual property risk mainly: new products to market before the patent application is not timely; new products fall into the wrong scope of patent protection; leaks during the development of project staff; technology is open or pre-empt competitors, patents, etc. . Effectively control these risks, should make the process of intellectual property in research and development assignments, including: research and development before the special search of patent analysis, can also learn to avoid duplication of research and development of advanced technology, most of the SMEs may not have to establish its own patent database, but can rely on the extensive network of resources or external professional bodies entrusted to appropriate patent search, to do technical intelligence gathering investigation on this basis, also estimates the risk of infringement; good security control, R & D process to prevent leaks in a timely manner R & D results on the part of the patent, the patent to do the deployment, on the part of the technology is not suitable for public secret processing technology can do.

2, the market into the international market, patent risk prevention

LED enterprises to enter the international market's main problems in the patent are: a, export product does not infringe the patent literature search and survey analysis; b, does not consider whether the product should be made on the export of the country's patent both the target market will be products into international market; c, the defense alleged infringement is not timely response. The face of Section 337, a reflection of China's enterprises are unwilling or because of huge legal costs of the respondent, or to abandon the U.S. open up the market. d, infringement by others does not prompt start of the proceedings. Such a negative attitude, often resulting in the loss to miss their intellectual property proceedings.

Therefore, LED companies enter the international market, from the following two patent laws to strengthen risk control: first, export the target market to do well before the country's intellectual property investigation and analysis, to avoid infringing intellectual property of others. United States, Japan and other countries a high level of intellectual property protection, measures to crack, when it comes, will bring great harm to the enterprise, most companies first respondent was the high cost of intellectual property repulsed. Retrieval of patent documents, to avoid the risk of these patents is to enter the international market, China's LED industry should immediately tuition homework. Secondly, intellectual property protection to innovations in a timely manner to strengthen the international patent application. LED export-oriented enterprises in China, as in a "cusp" of the specific practice of intellectual property strategy, should be familiar with and use of international intellectual property rules of the game. Foreign patent applications through PCT channels, and gradually accumulated patent, it can be said to participate in international competition, intellectual property rights a key step, the relatively high cost of international applications, but for long-term market interest considerations are necessary. There is no protection of intellectual property products to international markets as "disguise" certain death.

3, the right person to actively respond to the foreign patent litigation to prevent fraud

Dealing with foreign companies in our company's patent on charges of found, they often do not warn that the specific patent, alleging vague. The response of business is either ignored, or even to give up the market approach to avoid patent litigation; or is blind response, leading to high input costs, but do not work.

In fact, the so-called foreign companies were infringing the patent, a number of patents in the validity of ownership rights there are many flaws on, our production of "infringing products" Many do not constitute infringement. Therefore, for foreign companies to patent infringement allegations, the defendant company to take seriously, and actively collect evidence for an invalid key counter; the same time, the organization experienced technical personnel and to compare domestic intellectual property law, to do non-infringement defense. Commission fees directly responding to enormous foreign lawyers, as much as possible so that more work involved in domestic law by foreign lawyers to complete the necessary procedures.

In the patent infringement allegations, actively responding to possible to reduce losses. Actively respond in a timely manner to carry out preparatory work on the one hand, as soon as possible to see through patent fraud, do know ourselves, to avoid the greater risk of being dragged into the greater its proceedings; the other hand try to advance their technology to predict the risk of taking measures to avoid, elimination of technical barriers as soon as possible, to minimize losses.