Author: Engineering LED edit Wan sister
The LED industry is a high barrier to entry. It refers to upstream chips and epitaxial wafers, which currently account for 70% of the industry's output. It is precisely because of this that the formation of LED patent barriers has led to cases of LED patent infringements occurring from time to time. For example, the recent LED patent case: On May 26, 2010, the patent licensing company Bluestone Innovations Texas LLC filed two lawsuits in the Eastern Court of Texas, suing the global LED manufacturers OSRAM, Nichia and many others. The manufacturer infringes on its patent rights and draws an injunction and damages.
1. Definition of patent
A patent is an invention created and protected by law and regulation. It refers to a patent application filed by an invention to a state examination and approval authority. After being examined and approved according to law, it is granted to the patent applicant for the exclusive use of the invention within the stipulated time. right.
A patent is an exclusive right that has exclusive exclusivity. In order for a non-patentee to use other people's patented technology, the patentee must obtain the consent or permission of the patentee.
A patent granted by a country in accordance with its patent law is valid only within the jurisdiction of the law of the country, and has no binding force on other countries. Foreign countries are not obligated to protect their patent rights, if an invention is created only in China. To obtain a patent, the patentee only has exclusive or exclusive rights in China.
The legal protection of patent rights is time-sensitive. The duration of patents for inventions in China is 20 years, and the duration of patents for utility models and patents for designs is 10 years, counting from the date of filing.
2. Why apply for a patent?
Patents are legally protected by technical means to obtain economic benefits. Applying Pasteur's famous saying: Technology has no national boundaries, but patents have their own country. As for the reasons for the application, it can be divided into the following categories:
1) Monopoly technology: use patents to draw spheres of influence in the industry to prevent competitors from entering their own business fields;
2) Seeking permission: Applying some peripheral patents around the competitor's basic patents in order to obtain permission to use the other party's patented technology;
3) Patent speculation: Patent speculation puts the patent in hand and does not implement it. It only finds the potential infringer, intimidates the infringement lawsuit, and forces the other party to pay the license fee;
4) Only self-protection: master the patents of competitor technology. When the opponents infringe on their own infringement, they can also sue the opponent to infringe their own patents, so as to seek reconciliation;
5) Decorating the facade: The patent has no technical content, is patented for patents only, or applies for patents for certain projects, such as the current application for “high-tech technology enterprisesâ€.
3. The nature of the patent
The invention and creation of a patent application shall comply with the “three-sex†requirements stipulated in the Patent Law of China and its implementation rules, namely novelty, creativity and practicality.
1) Novelty
Novelty means that before the filing date, no identical invention or utility model was published in domestic and foreign publications, publicly used in the country or otherwise known to the public, and there is no similar invention or utility model. Others have filed an application with the Patent Administration Department under the State Council and recorded it in the patent application documents published after the filing date.
Judging whether an invention or a utility model is novel, the application date is a time standard, and the geographical standard for judging its novelty is a worldwide publication, and public use or otherwise known to the public is limited to the domestic.
The novelty of the design refers to the different designs and similar designs that have been publicly published in domestic and foreign publications before the application date or have been publicly used in China.
The Patent Law also provides for certain exceptions that do not lose novelty. For the first time in the six months before the application date, at the international exhibition hosted or recognized by the Chinese government, the novelty will not be lost. It is also considered that the novelty is not lost when it is first published at a prescribed academic conference or technical conference, or if someone else reveals its contents without the consent of the applicant.
2) Creativity
Creativity means that the invention has outstanding substantive features and significant progress compared with the existing technology before the filing date. The utility model has substantial features and progress.
Both inventions and utility models fall within the scope of the invention, the main difference being in creativity. The inventive requirements of the invention have outstanding substantive features and significant progress, while the creative requirements of the utility model have substantial features and progress, that is, the technical level required by the invention is relatively high, and the technical level of the utility model is relatively low. Known as the "small invention."
3) Practicality
Practicality means that the invention or utility model can be manufactured or used, and can produce a positive effect. That is, the invention must be able to be manufactured industrially or in industrial sectors such as industry and transportation, and may produce technical, economic or social benefits.
The practicality of the design means that it can be applied industrially, can produce positive social and economic effects, and can produce aesthetics.
The "three natures" of patents are a unified whole and an indispensable condition for obtaining patents. In the analysis, investigation and correct judgment of patentability before applying for a patent, the blindness of applying for a patent can be avoided. According to China's censorship system, invention patents adopt an early public late review system; utility models and designs adopt a preliminary review system. Therefore, the novelty search should be carried out before applying for the invention patent; the application for utility model and design should also carry out a novel search, so that the proposed patent application has a greater grasp of the patent right.
4. Type of patent
Internationally, patents generally refer to invention patents. According to the provisions of the Patent Law of China, patents are divided into three types: inventions, utility models and designs.
1) Invention patent
The invention referred to in the patent law refers to a new technical solution proposed for the product, method or improvement thereof. The invention is a technical solution that people use natural laws to solve various problems in production and life. The invention is divided into two major types of product inventions and method inventions. Product inventions are inventions of new or new substances. Method invention refers to the invention of the means and steps employed to solve a particular technical problem. For patent applications for inventions, if they are examined by the State Intellectual Property Office and meet the conditions stipulated by the Patent Law, the invention patents shall be granted.
2) Utility model patent
The utility model referred to in the patent law refers to a new technical solution suitable for practical use proposed for the shape, structure or combination of the products. The difference between the utility model and the invention is: first, the utility model is limited to a product having a certain shape, and cannot be a method, such as a production method, a test method, a treatment method, and an application method; and second, a utility model The creative requirements are not too high, but the practicality is strong. For the latter feature, people generally refer to it as a gizmo. For utility model patent applications, if they are examined by the State Intellectual Property Office and meet the conditions stipulated by the Patent Law, the utility model patents shall be granted.
3) Design patent
The design referred to in the patent law refers to a new design that is aesthetically pleasing and suitable for industrial applications in terms of the shape, pattern or combination of the products and the combination of color and shape and pattern. Both the design and the utility model can relate to the shape of the product. The difference is that the utility model is a technical solution, and the shape involved is related to the technical effect and function of the product; and the design is a design scheme, which involves The shape is related to the beauty of the product. If a patent application for a design is examined by the State Intellectual Property Office and meets the conditions stipulated by the Patent Law, the design patent right shall be granted.
5. History of LED patent development
1) Early LED patent dynamics
a. Focus on patent disputes, application litigation concentration
Most of the patent disputes such as patent disputes and authorizations were concentrated in the fields of Blu-ray epitaxy, chips and white LEDs. Nichia relied on its absolute superiority in these areas and maintained it through a large number of patent infringement complaints. Monopoly position in LED. Now, with the ever-expanding application market size and application field, patent events around lighting application systems are gradually increasing, and it is expected to become the subject of patent events in recent years.
The 2006 patent event also reflected this trend. For example, on May 12, the US court ruled that Color Kinetics won the patent litigation with Super Vision International, both of which are LED lighting system manufacturers and their patent disputes. Also concentrated in the field of LED lighting applications; on May 25 (Osram) and Avago announced the patent interaction, Osram will agree that Avago will manufacture and sell white LEDs with OSRAM patents, while Avago awarded OSRAM The use of the Avago patent, the right to manufacture LED system for LCD panel backlighting, etc., is a typical event in which the patent patent for the application of product patents is exchanged.
The key areas of LED-related patent events change as shown below:
b. The concentration of patents has fallen, and cooperation has become the mainstream of development.
Prior to 2002, Nichia's 74 basic patents, which were obtained between 1991 and 2001, covered the entire process of LED structure, epitaxy, chip, package manufacturing and phosphors, and had an absolute monopoly in the LED field. During this period, Nichia mainly relied on the construction of patent barriers and patent litigation to prevent other manufacturers from entering the market and competing with them in order to obtain high monopoly market interests.
As Osram, Toyoda Gosei, Cree, Lumileds and other companies have increased the number of patents in the LED field, Nichia has been defeated in patent litigation since 2001, which has forced it to change the attitude of patent licensing. A patent settlement and licensing agreement was reached with the above companies. With the further increase of companies with core patents, patent monopolies such as Nichia, Osram, Toyota Synthetic, and Cree are more active in expanding their influence in the LED market through patent licensing, and through the authorized OEMs of Taiwanese and Korean companies. Expand the market share of products.
At the same time, the rapid development of technology has forced technology leaders to abandon their own development ideas and turn to multilateral technology cooperation. The most obvious is Nichia, which in 2002 hoped to continue the development of white LEDs only by its own technology, but now in order to further develop the white LED market, it has turned to the effective use of multi-party patent cooperation to improve technology and product development. speed. Nichia recently announced the abandonment of the 404 patent, which is largely due to this consideration.
c. Patent relations are becoming more and more complex, and the role of industry alliances is prominent
With the continuous expansion of the fields involved in semiconductor lighting, there are not many companies involved in the patent events involved before 2005, including Nichia, Osram, Toyota Synthetic, Cree, Lumileds and other companies in Taiwan and Korea. Manufacturers, patent licenses and disputes are also clear at a glance.
Taiwan Kingbright's main patent event relationship diagram
Since 2005, the development and application of semiconductor lighting products has been expanding, and more companies have related patents, especially with the increasing variety of semiconductor lighting application products and manufacturers, the rapid expansion of market scale, and the growing patent relationship. complex.
In this situation, how to ensure that a company's products do not infringe the patent rights of other companies is an urgent problem to be solved. From a legal point of view, it is obviously not enough to simply listen to the seller's promise, and it is very likely to risk the infringement; hiring a patent attorney to investigate can solve this problem, but it takes a lot of time and money, not every company has the ability. use.
d. List of important patents in the LED industry
1. Important patents in the field of substrate technology
2. Extension of some important patents
3. Some important patents in the chip structure
4. Encapsulating some important patents
5. Apply some important patents
2) Recent LED patent developments
a. Some cases of LED patents
Toyoda Gosei is authorized by Nichia Chemical, Osram, Philips, and Showa Denko;
Nichia authorized Taiwan Hon Hai Group, Stanley Electric, Citizen;
Nichia cooperated with Taiwan Guanglei, and Guanglei found the Japanese chip.
According to the current market conditions, manufacturers that can solve patents are:
CREE / Nichia / Toyoda / Lumileds / Osram / Epstar / BridgeluxCREE: There are global patents. And cross-licensed with Nichia and TG to authorize the red, green and blue sunlight to use the wafer;
Nichia: Global patent. Cross-licensed with Toyota, CREE, and Lumileds. There are 93 appearance patents and 58 design patents in Japan, 30 patents in the US, 32 patents in China, and 2 patents in Hong Kong.
Lumileds: cross-authorization with Nichia;
OSRAM: Cross-licensing with Nichia;
Toyoda: Cross-authorization with Nichia;
Bridgelux: has a global patent and has licensed red, green and blue sunlight to use wafers;
Epstar: I can't solve the patent problem in Japan, and other countries can solve the patent problem.
b. Japanese patent analysis:
Japan's white light patents are mainly owned by NICHIA and TG, of which NICHIA has hundreds of patents in Japan. The patents involving white light are mainly:
1. Blu-ray chip;
2. YAG phosphor powder;
3. The blue chip is coated with YAG phosphor white light technology.
Because TG competed with NICHIA for the early days of Apple's notebook computer backlight business, TG reached Apple's product requirements, so many TG chips and products were used in the backlight of high-end brand computers. The production of its chips is tight, and as the supply of chips is tight, its prices are rising.
At present, NICHIA only sells its products in mainland China, but does not provide its phosphors and chips.
TG not only sells its products in mainland China, but also sells chips and phosphors, and has agents in China. However, TG does not authorize any packaging factory in China. Many packaging factories only purchase chips and phosphors through agents, and also export them to Japan in the form of patents. TG has authorized several major manufacturers in Taiwan to patent it.
6. The status quo and problems encountered in the development of LED patents
At present, the global LED market is controlled by the top 5 manufacturers in the industry, namely Nichia, Toyoda Gosei, Cree, Philips Lumileds and Osram. In order to maintain their competitive advantage and maintain their market share, these five companies have applied for a number of patents, covering almost the entire industrial chain including raw materials, equipment, packaging and applications. The development and production of LED manufacturers through patent authorization and cross-licensing not only hinders the emergence of new entrants, but also increases the production costs of enterprises to some extent.
The LED core patent barrier is like a Damocles sword hanging over the Chinese LED industry. Since core patents are controlled by overseas manufacturers, Chinese companies are at risk of patent infringement at any time. More than 60% of China's LED companies are sold in overseas markets such as Europe and the United States. Since the core patent technology of LED has been monopolized by European, American and Japanese manufacturers, many Chinese companies have encountered patent litigation overseas, and most of them have received compensation for settlement.
At present, China's LED application products are mainly concentrated in several major markets such as Europe and South America. In the Japanese market where LED demand is extremely high, Chinese brands have not been involved. In the Japanese market, Chinese LED companies basically rely on OEM OEM shipments, but no independent brands. One of the important reasons is that the Japanese market is extremely strict in its investigation of patent infringement. This has caused many Chinese companies to take the initiative to abandon this highly demanding market.
Correspondingly, overseas companies have stepped up their efforts to enter the Chinese market. For example, CREE and Xuming have established factories in China, and Nichia has plans to establish production plants in China to expand its product line coverage.
Relevant people suggested that the relevant enterprises should respond to the group and form a patent pool.
In Shenzhen, where LED companies are the most concentrated, a domestic LED patent alliance will be established, and patents can be cross-licensed between members.
After the establishment of the patent alliance, on the one hand, the authorized price of the core patent can be reduced, and on the other hand, the form of a core patent can be replaced by multiple application patents, thereby reducing the cost of the enterprise as a whole.
In addition, the State Council has made the decision to build an innovative country, and enterprises should strengthen their independent innovation capabilities. China's intellectual property law protection is gradually approaching international practice and is an increase in protection. In Europe and the United States, patent infringement, whether a seller, manufacturer or user, once indicted, it is very dangerous, for the business, will bear the cost of an expensive lawyer, a huge amount of compensation (punishment), and will bring The loss of goodwill came, and even the lawsuit caused the company to close down. They generally do not dare to sell an infringing product.
In short, in recent years, the domestic legal system for the protection of patents has gradually improved, and the awareness of human rights by large enterprises and enterprises has become more and more proficient in the use of patent administrative complaints and judicial protection measures to prevent patent infringement of dumped products, and to infringe on profit. It will be very long. Chinese companies should strive to have independent intellectual property rights, obtain as many patents as possible, break the patent barriers of the LED industry, and embark on a road of patents in China's own LED industry. It is believed that with the joint efforts of the industry, the domestic LED industry will surely be able to embark on a road of national independent innovation with Chinese characteristics!
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