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IPR: Protection Strategies for Start-ups
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Protection Strategies for Start-ups

BT 201802 IPR 01不少初创企业和中小企业有很好的发明创造和技术能力,但是往往重视产品研发却忘记保护自己。申请相关专利可以很好地保护自己与企业的利益,千万不要忘记为自己的发明申请发明专利等等。本期我们就来一起聊一聊有关专利的种类和申请办法。

发明专利是专利法保护的专利的三种类型之一,主要包括产品结构、方法类和用途类的发明专利;例如手机的硬件结构都是由哪些器件组成的、生产设备结构都是由哪些部件组成的;网站、APP、窗口等制作方法;发现了杀虫剂还具有除草的用途,感冒药还能用于缓解心脏疼痛的用途等。

不同于发明专利,只有对产品的形状、构造或者其结合所提出的适于实用的新的技术方案才能申请实用新型专利,即产品的方法或配方均不属于实用新型客体,但产品的结构可以申请实用新型专利,例如,手机的硬件结构都是由哪些器件组成的、生物检测装置结构都是由哪些构件组成的等等。

外观设计专利应当符合以下要求:是指形状、图案、色彩或者其结合的设计;必须是对产品的外表所作的设计;必须富有美感;必须是适于工业上的应用。

在这三种专利中,发明专利不同于实用新型或外观,需要经过实质审查,一般申请周期13-22个月。但在发明进入实审阶段后可以通过提交优先审查请求加快审查进度。实用新型为初步审查制,即初审合格后便授权,一般申请周期为3-7个月。外观设计一般申请周期为3-6个月。

最后,像我们在过去几期中多次提醒大家的那样,一定不要忘记尽早注册商标。防范恶意抢注可以避免公司受到无形损失。

For small start-ups the prospect of where to even start with an IP strategy can oftentimes be a daunting task as other concerns like building a good team, structuring the company, attracting investment and developing the product tend to take up all the time and attention of business owners. At the same time, a robust IP Strategy is crucial for business’ success when planning to enter the lucrative market of China. Besides helping the start-ups to protect their innovations from competitors, IP assets can also be a significant pull-factor when attracting investors.

BT 201802 IPR 02Protect Your Inventions with Patents

Patent protection is extremely important for start-ups as patents protect innovations, limit competition and help to defend against claims of infringement by other companies producing similar products. Furthermore, patents can attract investors, which is fundamental for start-ups. Thus it is important to apply for patent protection in China when planning to enter its market.
 

China has three types of patents: invention patents, utility model patents, and design patents. For hardware inventions, all three should be considered because each can help to protect your product in different ways.

BT 201802 IPR 04An invention patent is granted for innovations in the field of technology that are new and inventive over the prior art (any information relating to the invention which has already been made public), and that possess practical applicability. A utility model patent is granted for new technical solutions relating to the shape and/or structure of an object. In general, the degree of invention required for a utility model patent is not as high as for invention patents and these patents are often used for upgrades. A design patent is granted for original designs relating to the shape, pattern, colour or a combination of an object and it protects the ‘look’ – or cosmetic appeal – of a product.
 

Invention patents are protected for 20 years while utility models and design patents are protected for 10 years. The average duration of application/registration procedure is 3 to 5 years for invention patents while for utility/design patents it takes about 1 year. In order to obtain enforceable protection rights as soon as possible, it is advisable to file a utility and invention patent application in parallel, and abandon the utility model patent once the invention patent has been issued.
 

Start-ups should keep in mind that patents are granted under the ‘first-to-file’ rule, meaning that timely patent protection in China for each and every innovation is absolutely crucial.

BT 201802 IPR 03Don’t Forget To Protect Your Trade Mark

In start-up industry, competition is fierce and companies also invest considerably into branding in order to distinguish their products from the products of others. It would thus be devastating if someone else started to use a similar trade mark and benefit from the hard work of the original trade mark owner. Furthermore, it is particularly important to register trade marks in China because ‘bad-faith’ registrations is still a major problem in the country. Bad-faith registrations exist where a third party (not the legitimate owner of the mark) first registers the mark in China, thereby preventing the legitimate owner from registering it in the country. These unscrupulous companies would normally try to resell the trade mark back to its legitimate owner at an inflated price. It is also not uncommon that these trade mark hijackers try to sue the original brand owner for allegedly violating their registered trade mark rights in China. Forgetting to registering a trade mark in China could thus very easily end the start-ups’ business endeavor in the country.
 

When registering a trade mark in China, SMEs should keep in mind that trade mark registration classes (according to Nice Classification) are further divided into sub-classes in China. It is important to register the trade mark under the correct class and subclasses. If sub-classes are not designated in the application, the China Trade Mark Office (CTMO) examiner will decide which subclasses registration the applicant will receive, which might not be the most desired one for the applicant. Furthermore, if an SME forgets to register in all of the relevant subclasses, unscrupulous companies may register the SME’s trade mark in these subclasses themselves.
 

As the registration of a trade mark in original Roman characters does not automatically protect the trade mark against the use or registration of the same or similar trade mark written in Chinese characters, it is highly advisable to additionally register a version of a trade mark also in Chinese characters.

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