中国企业的专利侵权特征及维权策略研究

The Characteristics of Patent Infringement and the Strategy of Patent Protection of Chinese Enterprises

本文基于2016年中国企业专利调查数据,实证研究了遭遇专利侵权企业的专利特征及技术实施特征,考察了中国企业在面临专利侵权时的维权策略选择。研究表明:调查样本中有28.04%的企业遭遇过专利侵权,这些企业通常具有较多专利且专利质量较高、专利实施水平较高,且以自我实施专利技术为主;在遭遇专利侵权时,有77.86%的企业通过寻求律师援助、采用司法或行政保护的方式进行积极维权;且企业专利越多、专利质量越高、专利实施水平越高,其寻求积极维权的概率越高;主要通过许可方式实施专利技术的企业更倾向于采用行政、司法双重保护。进一步,专利质量、专利实施方式与主动维权的内在关联主要体现在专利依赖型行业及大中型企业。

The patent protection system is theoretical designed to stimulate enterprise innovation. As the essential part of patent protection system,the infringement relief mechanism plays the core role of pouring oil of interest to the fire of enterprise innovation. In recent years,the explosive growth of patent applications and grants and the fierce competition in patented technology among enterprises have greatly stimulated the probability of patent infringement and patent litigation.The frequent occurrence of patent infringement disputes raises high challenges for the infringement relief mechanism. In providing patent infringement relief,Chinese government currently adopts the dual track system with emphasis on judicial litigation and administrative enforcement,aiming to protect the patent rights in an all-round way.The innovation promotion effect of the patent infringement relief mechanism depends on which kinds of enterprises will apply to and how to use these mechanisms. This study focuses on what types of enterprises being more likely to become the users of infringement relief mechanism and how they make effective use of the patent infringement remedy mechanism. Based on the 2016 Chinese patent survey data,this study shows that 28. 04% of the enterprises in the survey have experienced patent infringement. These enterprises usually have more patents,higher patent quality,higher level of patent implementation,and the patented technology are mainly for self-use. Nearly 77. 86% of enterprises involved in patent infringement pursued active protection through seeking legal aid,judicial or administrative protection. Enterprise with more patent,higher patent quality as well as high implementation level has higher probability of seeking patent protection,instead of just keeping silence. For enterprise mainly utilizing patented technology through licensing tended to adopt the administrative and judicial protection simultaneously when suffered from patent infringement. Furthermore,the inherent relationship between patent quality,patent implementation and proactive patent protection mainly exists in patent-relied industries and for large and medium-sized enterprises.The policy implications of this study are as follows. First,innovative enterprises need to build an early alert mechanism to prevent patent infringement,especially for enterprises holding high quality patents and exploring patent rights heavily.Meanwhile,innovative enterprises need to make use of infringement relief mechanism when suffering patent infringement,in order to protect the patent rights fully. Second,beside judicial and administrative channels,the Chinese government needs to provide enterprises with a variety of infringement relief instruments,and constantly improve the efficiency of such instruments. Issues including improving the laws and regulations of infringement relief mechanism,improving the efficiency for both administrative and judicial protection,as well as promoting the synergistic effects between administrative and judicial protection constitute the further efforts in the near future.Third,the government should pay attention to the negative impact of the strategic patent protection（ litigation） on the innovation of defendants. Entities like NPEs may excessively seek administrative and judicial protection,which may lead to the abuse of patent rights and increasing the uncertainty of innovation,thereby inhibiting the defendant enterprise innovation. This phenomenon did exist in U. S. and may spread to China when China enhances its infringement relief mechanism. Last but not least,the government should pay close attention to heterogeneity in the use of relief instruments.The infringement alert is much more needed for patent-dependent industries and stricter relief protection is expected in these industries. Meanwhile,compared to large and medium-sized enterprises,the micro and small-sized enterprises are more likely to keep silence when suffering patent infringement. Therefore,instruments like judicial assistance,arbitration,assistance from industry organizations and consumer rights association are essential for them to protect patent rights.