Intellectual Property Protection Research Report
Entering the era of knowledge economy, the innovation of knowledge and technology has become the key to the survival and development of enterprises. With regard to the current inadequacies in the work of intellectual property rights of enterprises, such as the concept of intellectual property rights protection is not strong, the possession of intellectual property rights of enterprises is relatively low, and the loss of intellectual property rights is serious, etc., which has caused widespread concern. However, as far as the protection of intellectual property rights of Chinese enterprises is concerned, domestic enterprises and foreign-funded enterprises are often only paid attention to. The issue of intellectual property rights protection of Sino-foreign joint ventures as an important driving force for economic development has not attracted enough attention. With the accelerating process of economic globalization, especially after China's accession to the World Trade Organization, a large amount of foreign capital has flooded into the country, international enterprises competed domestically, and the internationalization of domestic enterprises has become increasingly evident. The form of Sino-foreign joint venture cooperation has become an important choice for foreign companies and domestic enterprises to achieve a win-win situation. However, in some areas, due to the strength of foreign companies or the lack of awareness of domestic enterprises, this combination is often based on the weakening or even loss of the legitimate rights and interests of domestic enterprises' intellectual property rights.
In order to understand the protection status of @#$ Sino-foreign joint ventures and intellectual property rights, @#$市智慧权局 staff investigated @#$三菱电梯有限公司, @#$耀华皮尔金顿玻璃股份有限公司, @#$立立Electric Appliance Co., Ltd., @#$Mitsubishi Electric Shangling Air Conditioner Co., Ltd. and other units, and held the Minhang District Sino-foreign joint venture cooperation enterprise intellectual property protection symposium in Minhang District Intellectual Property Office, @#$福祥陶瓷有限公司, Dongjie The heads of intellectual property rights of more than 10 companies including Electric Co., Ltd., Zijiang Group Co., Ltd. and Sino-British Submarine System Co., Ltd. attended the meeting.
The survey found that there are many problems in the protection of intellectual property rights of Sino-foreign joint ventures, mainly in the following ten points:
1. When a joint venture cooperative enterprise is established, there is no provision on the intellectual property rights of the enterprise in the contract and articles of association of the enterprise. There are many reasons for this. Some are because the company was established earlier, the intellectual property rights awareness is not strong, and some are because the company did not involve intellectual property rights in the early stage of establishment, and some cooperative enterprises, the Chinese only invested in the land, and even did not participate. Business management, the income is also fixed, and will not care about intellectual property rights. This brings many problems, such as the ownership of intellectual property rights of enterprises, especially how to distribute problems after the expiration of the joint venture; the ownership of newly developed intellectual property rights; and the management of daily intellectual property rights of enterprises. Because there is no agreement at the time of establishment, in practice, each enterprise can only adopt different operational methods due to its own situation, or negotiate new contracts or make new management regulations. But it also spawned many new problems. Therefore, it is recommended to include provisions on intellectual property rights in the corresponding joint venture cooperative enterprise contract and articles of association model, and require the relevant provisions on intellectual property rights when the joint venture cooperative enterprise is established in the corresponding legal regulations or approval procedures.
Second, the issue of the ownership of newly developed intellectual property rights. The survey found that the newly developed technology and brand intellectual property rights ownership issues are often closely related to the company's equity distribution. Generally, the newly acquired intellectual property rights of the enterprises controlled by the Chinese party belong to the joint venture and cooperative enterprise, and their rights are also distributed according to the equity. It has been suggested that the Chinese personnel usually complete the development of new technologies independently, but it is also unfair to assign the rights and interests of intellectual property rights to foreign parties. But in fact, it is even more unfair to be in a foreign-controlled enterprise, and the foreign party firmly holds the intellectual property rights in its own hands. Although many companies jointly develop technology in the country, patents are applied by foreign headquarters, and some companies even design patterns by Chinese personnel. Designers must name the foreign president. Some enterprises require the Chinese to provide foreign parties. The new technology developed on the basis of the technology can be used freely by the foreign party, but the Chinese side cannot use the newly developed technology of the foreign party free of charge, and the rights and obligations are obviously not equal. In these cases, there are corresponding provisions in the Patent Law and the Anti-Unfair Competition Law. However, in joint ventures and cooperative enterprises, especially joint ventures and joint ventures controlled by foreign parties, it is very difficult for China to claim its rights. To this end, it is recommended to make some detailed and mandatory provisions on these issues in the single-line policies and regulations formulated for joint ventures.
Third, the introduction of technology and the failure to make a reasonable definition and evaluation of intellectual property rights. When a joint venture or cooperative enterprise is established, the foreign party often transfers to the Chinese side by technology shares or technology, but it is often a “stubborn bag”. The intellectual property rights are not searched and evaluated in advance, and after the fees are paid, according to the outside The list of patents listed by the party found that only one-third of the patents were valid applications in China, but because of the lack of awareness at the time, a large amount of “tuition fees” was paid. Some foreign parties do not even list the patents. They just tell you that I have patents and technical secrets in this technology. I want to ask you how much you charge. China has no bargaining chips in its hands, or because of intellectual property rights. It was not strong, and the agreement was signed. Therefore, at the symposium, some enterprises have proposed that a professional and authoritative intellectual property appraisal agency can help enterprises to improve their technology.
4. There is no specific intellectual property management organization and professional management personnel within the enterprise. The survey found that, in addition to some enterprises, due to the importance of corporate leaders, the company itself has more intellectual property rights, there are specialized intellectual property rights management institutions, and its intellectual property management personnel also have better intellectual property rights theory knowledge and practical experience. Most joint ventures and cooperative enterprises, like state-owned enterprises, also have problems with the lack of specialized intellectual property management agencies and specialized management personnel. The intellectual property management system of some joint ventures and cooperative enterprises has just been established, and some are still in the process of preparation, and some have not yet been put on the agenda. In these enterprises, the management of intellectual property rights is not responsible for the management, and the part-time management personnel The understanding of intellectual property rights is also very limited. In the past publicity and training of enterprises, we often only pay attention to state-owned enterprises. In fact, strengthening the publicity and training of the intellectual property rights of Chinese personnel in joint ventures and cooperative enterprises is also of great significance in preventing the loss of state-owned intangible assets.
5. How to reward the newly developed intellectual property rights of employees, most of them are still not standardized. Except for joint ventures and cooperative enterprises that have established a sound intellectual property management system, most enterprises have very irregular rewards for employees' newly developed intellectual property rights, and there is no clear regulation. Some are used as a reference when deciding on promotion and rating bonuses, and some are given a certain amount of rewards, but the specific amount and time of reward are not clear, so the realization of the rights of inventors and designers cannot be guaranteed. Without standardized reward measures, it will inevitably dampen the enthusiasm of employees to invent and innovate, and will inevitably affect the market competitiveness of joint ventures and cooperative enterprises. Although there are provisions in the patent law and the implementation rules for rewarding inventors and designers, in specific practice, employees do not necessarily have this awareness, and it is difficult to claim their legitimate rights and interests. Therefore, we propose to promote the corresponding intellectual property management system in joint ventures and cooperative enterprises, and take the employee's intellectual property rights reward mechanism as an important part.
6. The foreign party only permits the transfer of low-level patented technology and does not transfer core technologies. In order to achieve the goal of controlling the Chinese side or joint venture and cooperative enterprise economically, and avoiding too much attention or excessive investment, the foreign party often does not deliberately use tangible assets as equity holding methods to control intellectual property rights. Since joint ventures and cooperative enterprises often adopt technologies that are invested or licensed by foreign parties, their intellectual property rights control methods can achieve strong control with small investment. If the foreign party uses its patented technology while permitting China to use only low-level technology for the Chinese side, and if it involves core technology, the foreign party will require the Chinese to purchase specific equipment or accessories. As a result, China will not have the core. Technology, and rely on foreign equipment or accessories in production. In addition, when the foreign party transfers or permits the Chinese to use the patented technology, it does not transfer or license other related patent technologies, so that the transferee can only sell the relevant patents to the Chinese at a high price when the transferee cannot produce the technology. Technology, the Chinese side is in a passive situation and has to pay a high royalty. In this regard, enterprises should carefully search and analyze the technology of foreign transfer and licensing when introducing technology, not only to understand the introduction of technology, but also to understand other related technologies.
7. The original Chinese trademark was diluted after the joint venture and cooperation. One of the most typical cases we have often mentioned is the “Mega-Net” trademark. In the early 1990s, @#$家化 took two-thirds of the fixed assets, and the sales of “Mega” and “Lumei” reached The 300 million yuan brand is a joint venture with an internationally renowned multinational company. However, the foreign company has used the holding method as a means to put the “Mega” and “Lumei” on the shelf, making consumers increasingly strange to these two brands. The maternalization of the mothership left after the joint venture, due to the lack of support from “Mega,” and “Lumei”, sales fell by 54% in one year. Through this painful lesson, business leaders finally realized the importance of intellectual property rights and spent a lot of money to “redeem” these two trademarks. However, the tragedy of the 1990s is still in the early 21st century. In order to occupy the market, more profits are made. Some enterprises often use foreign trademarks after joint ventures, sometimes because foreign parties want to expand their brands. And companies are required to do so. The product may be sold well, but the original Chinese trademark has been diluted. In fact, this is not only the loss of intangible assets, but also affects the long-term development of the company. The Chinese side not only pays a large amount of trademark use fees to foreign parties every year, but once the joint venture expires, the foreign party withdraws its own trademark. When the Chinese side thinks of using its original trademark, the trademark has long been forgotten by consumers. There is a Sino-Japanese joint venture in Pudong. The original trademark of China only took one year. In the second year, the foreign party added their trademark to the Chinese trademark. By the end of the year, after the foreign capital increased, it was completely changed to foreign. The trademark, the original Chinese trademark has been put on hold for six or seven years, consumers will never think of this trademark when buying this product, it will cost a lot of money to rebuild the brand, regardless of manpower, material resources, financial resources and market The risk perspective is very difficult.
8. The enterprise faces the problem of how to distribute intellectual property rights after the expiration of the joint venture. Also in the early 1990s, @#$益民食品一厂有限公司 and Hong Kong Watsons jointly established @#$屈臣氏食品有限公司, but there was no clear agreement on intellectual property rights during the joint venture. The “Mandenglin” brand of cold drinks produced by the joint venture is very popular, and the company also invests several million yuan each year to advertise this brand. However, since the original trademark registration was applied in the name of a foreign party, the Chinese side has no profit to be divided. When the joint venture collapsed, Watsons of Hong Kong took away all the patents for cold drinks and the “Mandenglin” trademark, while the cold drinks made with the equipment they left “generously” were warned by the other party’s infringement. The company's current joint venture cooperation is still facing the same problem. In the early stage of the establishment, the company did not make a clear agreement on the ownership of intellectual property rights. The joint venture cooperation expired, and the intellectual property rights should be distributed. Chinese companies rarely think about this. The problem is that some companies that are about to expire have begun to worry about this issue. Of course, this has something to do with the existing intellectual property management system of the enterprise, the equity of the Chinese and foreign parties in the enterprise, and the form of cooperation between the Chinese and foreign parties. In fact, in accordance with the principle of fairness and reasonableness, the two parties can negotiate to transfer the intellectual property rights to one party after the evaluation of the discount, or after the transfer, the two parties will distribute according to the equity, or continue to share. In practice, if it is operated and controlled by the Chinese side, the Chinese side may also strive for its legitimate rights and interests in accordance with the principle of fairness and reasonableness. However, if it is a company controlled by a foreign party, it is difficult for the Chinese side to distinguish it when it is divided. Some shares, especially if they were originally applied for by foreign parties and have intellectual property rights.
9. Foreign-funded enterprises use the opportunity of joint venture and cooperation to improperly occupy the intellectual property rights of the Chinese party without compensation and bring losses to the Chinese side. This is most likely to occur when China's traditional industries use technology as a condition for capital expansion, such as the "Kingtai Blue" technique and the "Xin paper" technology, because neither traditional patent application nor domestic patent protection is available. The major exporting countries applied for patents, and did not protect the trade secrets in the process of attracting foreign investment. They were ignored by the foreign party and mastered the key technologies. As a result, the foreign party abandoned the Chinese side and the Chinese lost its competitive market position. . However, during the investigation, we also found that even if it is not the traditional industry of our country, the same thing happens. In one enterprise, the technical solutions proposed by the Chinese employees during the discussion were actually secretly applied for patents by foreign managers in foreign countries. The Chinese employees found after the excavation that the company could only stipulate the restrictions. Behavior, but it is too late.
X. Enterprises lack confidence in China's intellectual property rights protection system. At the symposium, many joint ventures and cooperative enterprises mentioned that the invention patent review period is long, the infringement phenomenon is widespread, the intellectual property rights litigation is difficult to obtain evidence, the cost is high, the compensation is low, and the rights protection costs are high. Many existing law enforcement legislations are not enough to protect them. Intellectual property rights. Other companies have proposed contradictions between @#$'s policies and practices that encourage technological innovation and patent applications. These real problems have weakened the enthusiasm of enterprises to apply for patents, and indirectly affected the intellectual property rights of enterprises.
In order to understand the protection status of @#$ Sino-foreign joint ventures and intellectual property rights, @#$市智慧权局 staff investigated @#$三菱电梯有限公司, @#$耀华皮尔金顿玻璃股份有限公司, @#$立立Electric Appliance Co., Ltd., @#$Mitsubishi Electric Shangling Air Conditioner Co., Ltd. and other units, and held the Minhang District Sino-foreign joint venture cooperation enterprise intellectual property protection symposium in Minhang District Intellectual Property Office, @#$福祥陶瓷有限公司, Dongjie The heads of intellectual property rights of more than 10 companies including Electric Co., Ltd., Zijiang Group Co., Ltd. and Sino-British Submarine System Co., Ltd. attended the meeting.
The survey found that there are many problems in the protection of intellectual property rights of Sino-foreign joint ventures, mainly in the following ten points:
1. When a joint venture cooperative enterprise is established, there is no provision on the intellectual property rights of the enterprise in the contract and articles of association of the enterprise. There are many reasons for this. Some are because the company was established earlier, the intellectual property rights awareness is not strong, and some are because the company did not involve intellectual property rights in the early stage of establishment, and some cooperative enterprises, the Chinese only invested in the land, and even did not participate. Business management, the income is also fixed, and will not care about intellectual property rights. This brings many problems, such as the ownership of intellectual property rights of enterprises, especially how to distribute problems after the expiration of the joint venture; the ownership of newly developed intellectual property rights; and the management of daily intellectual property rights of enterprises. Because there is no agreement at the time of establishment, in practice, each enterprise can only adopt different operational methods due to its own situation, or negotiate new contracts or make new management regulations. But it also spawned many new problems. Therefore, it is recommended to include provisions on intellectual property rights in the corresponding joint venture cooperative enterprise contract and articles of association model, and require the relevant provisions on intellectual property rights when the joint venture cooperative enterprise is established in the corresponding legal regulations or approval procedures.
Second, the issue of the ownership of newly developed intellectual property rights. The survey found that the newly developed technology and brand intellectual property rights ownership issues are often closely related to the company's equity distribution. Generally, the newly acquired intellectual property rights of the enterprises controlled by the Chinese party belong to the joint venture and cooperative enterprise, and their rights are also distributed according to the equity. It has been suggested that the Chinese personnel usually complete the development of new technologies independently, but it is also unfair to assign the rights and interests of intellectual property rights to foreign parties. But in fact, it is even more unfair to be in a foreign-controlled enterprise, and the foreign party firmly holds the intellectual property rights in its own hands. Although many companies jointly develop technology in the country, patents are applied by foreign headquarters, and some companies even design patterns by Chinese personnel. Designers must name the foreign president. Some enterprises require the Chinese to provide foreign parties. The new technology developed on the basis of the technology can be used freely by the foreign party, but the Chinese side cannot use the newly developed technology of the foreign party free of charge, and the rights and obligations are obviously not equal. In these cases, there are corresponding provisions in the Patent Law and the Anti-Unfair Competition Law. However, in joint ventures and cooperative enterprises, especially joint ventures and joint ventures controlled by foreign parties, it is very difficult for China to claim its rights. To this end, it is recommended to make some detailed and mandatory provisions on these issues in the single-line policies and regulations formulated for joint ventures.
Third, the introduction of technology and the failure to make a reasonable definition and evaluation of intellectual property rights. When a joint venture or cooperative enterprise is established, the foreign party often transfers to the Chinese side by technology shares or technology, but it is often a “stubborn bag”. The intellectual property rights are not searched and evaluated in advance, and after the fees are paid, according to the outside The list of patents listed by the party found that only one-third of the patents were valid applications in China, but because of the lack of awareness at the time, a large amount of “tuition fees” was paid. Some foreign parties do not even list the patents. They just tell you that I have patents and technical secrets in this technology. I want to ask you how much you charge. China has no bargaining chips in its hands, or because of intellectual property rights. It was not strong, and the agreement was signed. Therefore, at the symposium, some enterprises have proposed that a professional and authoritative intellectual property appraisal agency can help enterprises to improve their technology.
4. There is no specific intellectual property management organization and professional management personnel within the enterprise. The survey found that, in addition to some enterprises, due to the importance of corporate leaders, the company itself has more intellectual property rights, there are specialized intellectual property rights management institutions, and its intellectual property management personnel also have better intellectual property rights theory knowledge and practical experience. Most joint ventures and cooperative enterprises, like state-owned enterprises, also have problems with the lack of specialized intellectual property management agencies and specialized management personnel. The intellectual property management system of some joint ventures and cooperative enterprises has just been established, and some are still in the process of preparation, and some have not yet been put on the agenda. In these enterprises, the management of intellectual property rights is not responsible for the management, and the part-time management personnel The understanding of intellectual property rights is also very limited. In the past publicity and training of enterprises, we often only pay attention to state-owned enterprises. In fact, strengthening the publicity and training of the intellectual property rights of Chinese personnel in joint ventures and cooperative enterprises is also of great significance in preventing the loss of state-owned intangible assets.
5. How to reward the newly developed intellectual property rights of employees, most of them are still not standardized. Except for joint ventures and cooperative enterprises that have established a sound intellectual property management system, most enterprises have very irregular rewards for employees' newly developed intellectual property rights, and there is no clear regulation. Some are used as a reference when deciding on promotion and rating bonuses, and some are given a certain amount of rewards, but the specific amount and time of reward are not clear, so the realization of the rights of inventors and designers cannot be guaranteed. Without standardized reward measures, it will inevitably dampen the enthusiasm of employees to invent and innovate, and will inevitably affect the market competitiveness of joint ventures and cooperative enterprises. Although there are provisions in the patent law and the implementation rules for rewarding inventors and designers, in specific practice, employees do not necessarily have this awareness, and it is difficult to claim their legitimate rights and interests. Therefore, we propose to promote the corresponding intellectual property management system in joint ventures and cooperative enterprises, and take the employee's intellectual property rights reward mechanism as an important part.
6. The foreign party only permits the transfer of low-level patented technology and does not transfer core technologies. In order to achieve the goal of controlling the Chinese side or joint venture and cooperative enterprise economically, and avoiding too much attention or excessive investment, the foreign party often does not deliberately use tangible assets as equity holding methods to control intellectual property rights. Since joint ventures and cooperative enterprises often adopt technologies that are invested or licensed by foreign parties, their intellectual property rights control methods can achieve strong control with small investment. If the foreign party uses its patented technology while permitting China to use only low-level technology for the Chinese side, and if it involves core technology, the foreign party will require the Chinese to purchase specific equipment or accessories. As a result, China will not have the core. Technology, and rely on foreign equipment or accessories in production. In addition, when the foreign party transfers or permits the Chinese to use the patented technology, it does not transfer or license other related patent technologies, so that the transferee can only sell the relevant patents to the Chinese at a high price when the transferee cannot produce the technology. Technology, the Chinese side is in a passive situation and has to pay a high royalty. In this regard, enterprises should carefully search and analyze the technology of foreign transfer and licensing when introducing technology, not only to understand the introduction of technology, but also to understand other related technologies.
7. The original Chinese trademark was diluted after the joint venture and cooperation. One of the most typical cases we have often mentioned is the “Mega-Net” trademark. In the early 1990s, @#$家化 took two-thirds of the fixed assets, and the sales of “Mega” and “Lumei” reached The 300 million yuan brand is a joint venture with an internationally renowned multinational company. However, the foreign company has used the holding method as a means to put the “Mega” and “Lumei” on the shelf, making consumers increasingly strange to these two brands. The maternalization of the mothership left after the joint venture, due to the lack of support from “Mega,” and “Lumei”, sales fell by 54% in one year. Through this painful lesson, business leaders finally realized the importance of intellectual property rights and spent a lot of money to “redeem” these two trademarks. However, the tragedy of the 1990s is still in the early 21st century. In order to occupy the market, more profits are made. Some enterprises often use foreign trademarks after joint ventures, sometimes because foreign parties want to expand their brands. And companies are required to do so. The product may be sold well, but the original Chinese trademark has been diluted. In fact, this is not only the loss of intangible assets, but also affects the long-term development of the company. The Chinese side not only pays a large amount of trademark use fees to foreign parties every year, but once the joint venture expires, the foreign party withdraws its own trademark. When the Chinese side thinks of using its original trademark, the trademark has long been forgotten by consumers. There is a Sino-Japanese joint venture in Pudong. The original trademark of China only took one year. In the second year, the foreign party added their trademark to the Chinese trademark. By the end of the year, after the foreign capital increased, it was completely changed to foreign. The trademark, the original Chinese trademark has been put on hold for six or seven years, consumers will never think of this trademark when buying this product, it will cost a lot of money to rebuild the brand, regardless of manpower, material resources, financial resources and market The risk perspective is very difficult.
8. The enterprise faces the problem of how to distribute intellectual property rights after the expiration of the joint venture. Also in the early 1990s, @#$益民食品一厂有限公司 and Hong Kong Watsons jointly established @#$屈臣氏食品有限公司, but there was no clear agreement on intellectual property rights during the joint venture. The “Mandenglin” brand of cold drinks produced by the joint venture is very popular, and the company also invests several million yuan each year to advertise this brand. However, since the original trademark registration was applied in the name of a foreign party, the Chinese side has no profit to be divided. When the joint venture collapsed, Watsons of Hong Kong took away all the patents for cold drinks and the “Mandenglin” trademark, while the cold drinks made with the equipment they left “generously” were warned by the other party’s infringement. The company's current joint venture cooperation is still facing the same problem. In the early stage of the establishment, the company did not make a clear agreement on the ownership of intellectual property rights. The joint venture cooperation expired, and the intellectual property rights should be distributed. Chinese companies rarely think about this. The problem is that some companies that are about to expire have begun to worry about this issue. Of course, this has something to do with the existing intellectual property management system of the enterprise, the equity of the Chinese and foreign parties in the enterprise, and the form of cooperation between the Chinese and foreign parties. In fact, in accordance with the principle of fairness and reasonableness, the two parties can negotiate to transfer the intellectual property rights to one party after the evaluation of the discount, or after the transfer, the two parties will distribute according to the equity, or continue to share. In practice, if it is operated and controlled by the Chinese side, the Chinese side may also strive for its legitimate rights and interests in accordance with the principle of fairness and reasonableness. However, if it is a company controlled by a foreign party, it is difficult for the Chinese side to distinguish it when it is divided. Some shares, especially if they were originally applied for by foreign parties and have intellectual property rights.
9. Foreign-funded enterprises use the opportunity of joint venture and cooperation to improperly occupy the intellectual property rights of the Chinese party without compensation and bring losses to the Chinese side. This is most likely to occur when China's traditional industries use technology as a condition for capital expansion, such as the "Kingtai Blue" technique and the "Xin paper" technology, because neither traditional patent application nor domestic patent protection is available. The major exporting countries applied for patents, and did not protect the trade secrets in the process of attracting foreign investment. They were ignored by the foreign party and mastered the key technologies. As a result, the foreign party abandoned the Chinese side and the Chinese lost its competitive market position. . However, during the investigation, we also found that even if it is not the traditional industry of our country, the same thing happens. In one enterprise, the technical solutions proposed by the Chinese employees during the discussion were actually secretly applied for patents by foreign managers in foreign countries. The Chinese employees found after the excavation that the company could only stipulate the restrictions. Behavior, but it is too late.
X. Enterprises lack confidence in China's intellectual property rights protection system. At the symposium, many joint ventures and cooperative enterprises mentioned that the invention patent review period is long, the infringement phenomenon is widespread, the intellectual property rights litigation is difficult to obtain evidence, the cost is high, the compensation is low, and the rights protection costs are high. Many existing law enforcement legislations are not enough to protect them. Intellectual property rights. Other companies have proposed contradictions between @#$'s policies and practices that encourage technological innovation and patent applications. These real problems have weakened the enthusiasm of enterprises to apply for patents, and indirectly affected the intellectual property rights of enterprises.
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