Viewpoint... The second legal perspective of intellectual property compliance management of enterprises and institutions.
Published:
2024-02-01
This paper intends to analyze and organize it from the perspective of legal personnel of enterprises and institutions, combined with the intellectual property risks that the author has often encountered in the process of enterprise intellectual property legal services for many years, hoping to assist the enterprise's own legal personnel to predict, identify and discover risks in advance, and escort the healthy development of enterprises.
Previous articles on intellectual property issues that enterprises and institutions should pay attention to through their own channels in the multimedia/self-media era (serial 1) are very popular, with a high volume of dissemination, which can inspire the work of enterprise personnel and help the healthy development of enterprises is the original intention of our preparation of this series of articles. This paper intends to analyze and organize it from the perspective of legal personnel of enterprises and institutions, combined with the intellectual property risks that the author has often encountered in the process of enterprise intellectual property legal services for many years, hoping to assist the enterprise's own legal personnel to predict, identify and discover risks in advance, and escort the healthy development of enterprises. The author's writing is limited, or easy to understand as the standard, hoping to benefit the majority of legal personnel.
Enterprises and institutions will encounter intellectual property problems all the time in their daily office, production and business activities, from the copyright of daily office software to trademarks, from patented products to the protection of enterprise trade secrets, regardless of the size of the business and the value of intellectual property rights, as legal personnel must sort out the key points of intellectual property rights in advance, know fairly well and predict in advance, that is, bring intellectual property compliance thinking into every step of the work.
Starting from the regular work of legal personnel, the author will gradually analyze and organize the relevant work of the generation, operation, management and protection of intellectual property rights from the perspective of legal affairs:
1. the generation of intellectual property rights
1, original
The production process of an article, a piece of music, a photo, a video, a drawing or a program is the creation process of intellectual property rights. Artists and artists are romantic, and they can create a new work when their inspiration flashes; scientific and technological workers are rigorous, and they develop new products or research new methods based on the study of technology; and legal workers are rational Yes, we must rely on the understanding of laws and regulations, take the interests of the unit as the principle, register/record original works, and make appropriate protection measures.
For original works, we must first determine the subject, who is the author/inventor, and determine the ownership of the original work according to the existing laws and regulations, contracts or unit rules and regulations. Secondly, it is necessary to determine the originality, whether there are the same or equivalent results in the same or similar fields, and assist the author to make the judgment of originality according to the originality standards required by laws and regulations for different types of results. The third is registration or filing, whether to register or file the original works publicly or within the unit; Whether to apply for patents or trade secrets to protect the original technology; How to register the cultivated new plant varieties, original integrated circuit wiring rights, etc.
2. Purchase/Transfer
Purchase/transfer by agreement is one of the more common ways to acquire intellectual property rights, and legal personnel should first have a relative understanding of the type of intellectual property rights purchased and initiate intellectual property due diligence procedures, including legal due diligence and technical due diligence. Simply put, the main purpose of legal due diligence is to determine the ownership and authenticity and legality of the purchased intellectual property rights, and technical due diligence is to determine the stability and authenticity value of the purchased intellectual property rights. Determine the content of the contract through negotiation, due diligence, etc., and design the terms of liability for breach of contract/claim. At the same time, during the performance of the agreement, attention should be paid to timely handling of transfer/handover and corresponding registration or filing procedures.
3. Authorized Use
The right holder may, by means of authorization, authorize others to use the intellectual property rights of the right holder in the form of an exclusive license, an exclusive license or a general license. As an authorized person, the legal personnel should pay attention to the authenticity, stability and validity of the rights before signing the authorization use contract or issuing the authorization letter, and clarify the type, scope, region and duration of the authorized rights, so as to avoid the phenomenon of conflict of rights or overlapping rights. For the legal personnel of the authorized person, before signing the contract or obtaining the power of attorney, due diligence should be conducted to determine the authenticity and stability of the right, determine the type, scope, territory and duration of the right, and set up the corresponding right defect claim clause.
4, rights acquisition
For the intellectual property rights obtained by the third party's infringement of the legitimate rights and interests of the unit, civil, administrative or criminal means should be adopted to protect the rights, and the corresponding intellectual property rights should be obtained through the protection of rights.
5 Other ways
In addition to the above, intellectual property rights can also be acquired through natural person inheritance, bona fide acquisition, merger or division of companies, etc.
Legal personnel shall classify, register or record the intellectual property rights obtained by the above methods at the first time, take appropriate measures to protect them, and maintain the effectiveness of intellectual property rights in accordance with relevant laws and regulations and unit rules and regulations.
Operational aspects of 2. intellectual property rights
1. About the subject
Whether it is a high-tech enterprise, a traditional manufacturing industry or a cultural and creative tourism enterprise, the author recommends that intellectual property rights be operated in one main body (hereinafter referred to as the "operating company"). The equity design of the operating company shall be determined as an offshore company or a limited liability company according to the strategic planning of the whole enterprise. Regardless of the nature of the operating company, its equity shall be clear and the authority, rules of procedure and voting of the shareholders' meeting and the board of directors shall conform to the legal provisions and be easy to make. Its income can be legally distributed to the obligee or owner without objection.
2, about the daily operation of the operating company.
The operating company shall operate independently and shall not participate in the guarantee, mutual insurance or other production and operation activities for which the enterprise may be liable. The shareholders of the operating company shall, in accordance with the provisions of the Company Law, separate people, money and things, and the operating company shall operate independently as a legal person and be responsible for its own profits and losses.
The operating company should be equipped with the corresponding intellectual property operation personnel to operate, through licensing, agreement transfer, rights protection and other benefits.
If the operating company cannot be established separately, the intellectual property operation team and the management team should be combined, and corresponding shielding measures should be taken to prevent the company holding intellectual property rights from being seized, frozen or auctioned due to debt disputes.
3. the management of intellectual property rights
The management of intellectual property rights is meticulous and trivial. Legal personnel should apply and register according to the types of intellectual property rights. For patents, trademarks, etc. that need to be renewed on time, timely arrange corresponding process personnel for special management or external professional companies for management. The copyright proposal is also registered and a copyright certificate is obtained.
For business secrets, the company's legal personnel should first cooperate with the human resources to revise the company's Labor Contract, Confidentiality Agreement and Non-competition Agreement, design pre-separation measures before leaving office, and do a good job in pre-prevention work such as rules and regulations for the protection of business secrets. Secondly, the company's legal personnel should work with technical personnel to design a physical isolation plan, protect intellectual property rights such as trade secrets through reasonable measures such as access control by secret-related departments, restrictions on uploading and downloading, encryption software, background encryption, etc., that is, control during the matter; finally, for those who may or have infringed upon the company's trade secrets, civil or criminal means shall be taken to investigate their responsibilities, that is, after-the-fact protection.
4. the protection of intellectual property rights
For the protection of intellectual property rights, it should be all-round, that is, from the beginning of research and development, throughout the entire stage of management and operation.
First of all, the legal personnel of the enterprise should cooperate with the company's technical or management personnel to make an overall plan for the acquisition of intellectual property rights, and put forward suggestions on patent application, trademark application, copyright application, trade secret protection measures, etc. from a legal point of view. Secondly, rules and regulations should be established to register or leave marks on the inspection, borrowing, retrieval and use of intellectual property rights. Third, internal and external inspections should be carried out on schedule to find risks in time; finally, we should cooperate with professional institutions to collect evidence for the existence of torts, and take appropriate measures to protect their rights.
In addition to protecting its own intellectual property rights, the intellectual property protection link should also conduct regular self-inspection on whether the enterprise has the risk of infringing the intellectual property rights of others, and actively rectify after discovery to avoid infringement litigation.
5. Summary
This article only makes a routine statement on domestic intellectual property-related compliance issues, and foreign-related intellectual property compliance is more challenging for lawyers and corporate legal affairs due to the different legal provisions and policies of various countries and the more complex influence of political factors. This article can be used as a reference for the legal affairs of enterprises and institutions in the regular of intellectual property compliance.
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