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2022-08-12
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Patented technology and technical secrets

"the patent law of the people's Republic of China" (hereinafter referred to as the Patent Law) stipulates that three kinds of patents are granted: invention patents, utility model patents and design patents

1) invention patents refer to new technical solutions for products, methods or their improvements

2) utility model patent refers to a new technical scheme suitable for practical use for the shape, structure or combination of products

3) design patent refers to a new design of the shape, pattern or its combination of products, as well as the combination of color, shape and pattern, which is aesthetic and suitable for industrial application

patented technology generally refers to the patented technology scheme after obtaining the patent right. It has the following three basic characteristics:

1) the exclusive patented technology is exclusive. According to the relevant provisions of Article 11 of the "patent law", no entity or individual may exploit its patent without the permission of the patentee

2) a regional patent is only valid in the country and region where it is granted

3) timeliness at present, the protection period of invention patents granted by the Chinese government is 20 years, and the protection period of utility model patents (generally also known as small patents) and design patents is 10 years, both of which are calculated from the date of application

1 characteristics of patented technology

1) patented technology is not a "secret technology"

the state grants patents to inventors, so that they can enjoy the benefits brought by patented technology alone for a period of time. The exchange condition is that the patented technology must be fully disclosed, so that the public can understand the characteristics of the existing public technology, further improve the existing patented technology, and avoid repeated research, so as to promote social technological progress and innovation

such as zl 1 (a) and zl 3 (b) two design patents disclose two design schemes of the compaction wheel of the impact compactor (as shown in Figure 1). Another inventor believes that adding bumps to the pentagonal and quadrilateral impact wheels will make the impact force of the bumps on the ground many times larger when impacting and crushing the old road surface, which can achieve better crushing effect. Therefore, another new utility model patent ZL is applied for 1 (c), that is, the design of adding a bump on the edge of the quadrilateral impact wheel. The disclosed invention patent application (d) (application No.: 9, Publication No.: CN) is the technical scheme of adding a bump to the edge of the pentagonal impact wheel

(a) (b) (c) (d)

four patent schemes about impact compaction wheel

obviously, the invention technical scheme of the former is still within the legal protection period, and this example involves a difficult problem that the latter must use the invention technical scheme of the former when using its own invention technology. Article 50 of the patent law stipulates as follows: "Where an invention or utility model for which a patent right has been obtained has made significant technological progress of significant economic significance compared with the invention or utility model for which a patent right has been obtained, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department under the State Council may, on the application of the latter patentee, grant a compulsory license for the implementation of the previous invention or utility model. Where a compulsory license for the implementation of the previous invention or utility model is granted in accordance with the provisions of the preceding paragraph Under the circumstances, the Patent Administration Department of the State Council may also grant a compulsory license to exploit the latter invention or utility model based on the application of the former patentee ". According to Article 54 of the Patent Law: the entity or individual that has obtained the compulsory license for exploitation shall pay the patentee a reasonable fee for use, and the amount shall be negotiated by both parties; If the two parties fail to reach an agreement, the administrative department for patent under the State Council shall make a ruling

2) patented technology is not completely "mature technology"

the patent department needs to go through substantive examination when authorizing invention patents. In other words, the application scheme should generally have "novelty, creativity and practicality" at the same time. "Novelty" means that no identical or similar technical solution has been disclosed before the application date; "Creativity" refers to outstanding substantive technical characteristics and significant technological progress; "Practicality" means that it can be manufactured and used, and can produce positive effects. For utility model patents and design patents, the patent law also has corresponding requirements for novelty, creativity and practicality, but the patent office does not conduct substantive examination, but only requires that the form of application documents meet the requirements. This is mainly due to the large number of utility model and design patent applications and strong practicality. If every application is examined, it will inevitably lead to the late disclosure of new and practical inventions and the postponement of the time for the public to use new technologies. At the same time, the time-consuming and labor-intensive review process and costs are also a burden on the inventor. However, it is also stipulated in the patent law that the public should ensure the quality of these patents through the legal process of "invalidating" the authorized patents. According to Article 45 of the Patent Law: from the date when the patent administration department under the State Council announces the grant of the patent right, any entity or individual that believes that the grant of the patent right is not in conformity with the relevant provisions of this law may request the Patent Reexamination Board to declare the patent right invalid. According to incomplete statistics, thousands of patents have been declared invalid by the Patent Reexamination Board, of which utility model patents and design patents account for the majority. It can be considered that these units and individuals requesting "invalidation" are both patent stakeholders and defenders of patent quality

3) patented technology is not a "world patent"

the United Nations does not have a world patent office, so there can be no "world patent". At present, China has joined the "Patent Cooperation Treaty" and the "Paris Convention for the protection of intellectual property rights" and other world patent cooperation organizations. The purpose of these organizations is to promote patent applications in various countries, speed up the examination process, and solve and coordinate the information exchange of patents in various countries. China has officially become a member of the Patent Cooperation Treaty Organization (PCT) on January 1st, 1994. The Chinese patent office can accept the "international application", give the application number, start the international search procedure, and conduct the international preliminary examination upon the request of the applicant. But its essence is that when the inventor applies for a patent in the member states of the Treaty Organization, his application date is recognized by the Member States, which can avoid many inconveniences caused by applying to all countries at the same time. The results of its international search and preliminary examination were adopted by various countries, but the final approval of the application was carried out in accordance with the patent laws of various countries. That is, the patent authorization of one country to the application does not affect the patent authorization of other countries to the application

2 characteristics of technical secrets

technical secrets were first called "know-how", which refers to the technical information, technical data, technical know-how, product design methods, process flow and formula, quality control and technical management that are not disclosed by the owner and are in a confidential state. Its primary characteristic is value, which is the life of technical secret, and it brings commercial value to the owner; The second feature is confidentiality, that is, this technology cannot be obtained directly from open channels and is not known by technicians in related fields; The third feature is that the power owner has taken confidentiality measures, that is, the corresponding confidentiality measures have been adopted in preventing external intrusion and internal leakage. For example, internal confidentiality rules and regulations have been formulated, confidentiality contracts have been concluded with relevant parties, and strict management systems have been established for key departments and fields involving technical secrets

it is worth pointing out that some enterprises have not fully confirmed their own technical secrets, and the protection of technical secrets obtained in their own development technology is not in place. The following describes the above characteristics in combination with relevant issues:

1) accounting for 1/3 of the world. The cutting-edge new materials in the "1025" development plan for the new material industry "issued by the Ministry of industry and information technology in 2013 include graphene enterprises, which guarantee the cleanness and good lubricity of their equipment The protection of technical secrets obtained from research and development with good corrosion prevention is to prohibit unfair competition. The owner of technical secrets cannot prevent the same industry from developing the same technology, nor can he prevent others from using or disclosing the technical secrets independently developed by you. Because the law does not give the obligee of technical secrets the monopoly right. It is also a legal way to obtain technical secrets through the observation of announcements and public things

2) "reverse engineering", "black box Engineering" and technical secrets

reverse engineering, also known as restoration engineering, refers to the technical secrets related to this product obtained by people through legal methods, analyzing their methods, understanding the structure, and decomposing their product structure. This way is legitimate competition. "Black box project" means that the obligee leases the products with technical secrets, and at the same time, signs a contract clause with the lessee that prohibits it from disassembling or decomposing the leased goods, and prohibits it from revealing and using the technical secrets. In this case, the lessee has the obligation to respect the lessor's technical secrets, and cannot obtain the technical secrets under the excuse of reverse engineering

3) bona fide acquisition of technical secrets

when the obligee of the technical secret negligently discloses the technical secret to others without making any declaration of rights, and the opposite party uses its technical secret in good faith, in this case, the opposite party is not necessary to bear the fault of the right owner, and its use of the technical secret does not constitute infringement

3 legal protection of patents and technical secrets

1) protection of patents

the protection of patented technical solutions is determined by the "patent law". Article 56 of the patent law clearly stipulates that "the scope of protection of the patent right for invention or utility model shall be subject to the contents of its claims, and the description and attached drawings may be used to interpret the claims. The scope of protection of the patent right for design shall be subject to the patented product for design shown in the pictures or photographs". There are also specific provisions on patent infringement in articles 57 to 61

2) protection of technical secrets

the protection of technical secrets is applicable to the provisions of the "Anti Unfair Competition Law of the people's Republic of China" promulgated on September 2, 1993. For the illegal infringement of others' technical secrets, the supervision and inspection department may order them to stop the illegal act and impose a fine of not less than 10000 yuan but not more than 200000 yuan according to the circumstances. It can also be protected by the relevant provisions of the "contract law" and the "general principles of civil law". Article 118 of the "general principles of the civil law" stipulates: "citizens and legal persons whose copyright, invention right and other scientific and technological achievements have been infringed by plagiarism, tampering, counterfeiting, etc. @2. If they are powered on for 30 seconds, they have the right to demand that the infringement be stopped, the impact be eliminated, and the losses be compensated." It can be seen from the above terms that patent infringement is a negative civil. For the illegal and serious infringement of technical secrets, Article 219 of the criminal law stipulates that it can be sentenced to imprisonment of not less than three years and not more than seven years, which obviously involves criminal law

3) protective measures

as the patented technology is a public technology, the patented technology can only be protected from infringement by others through the "patent law". In order to safeguard the interests of the enterprise and reduce the loss of technical secrets, the enterprise should take the following measures: first, the relevant personnel involved in the technology should sign a confidentiality agreement to clarify the scope, duration and breach of contract of confidentiality; Second, establish perfect internal management rules and laboratory codes; Third, it is required that the personnel involved in technical secrets are not the same or similar within a certain period of time after leaving

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