Since its commercialization, LED has been cultivated for more than 40 years, and since the beginning of the 1990s, LED lighting technology and the market have maintained a state of rapid development. Now LED industry technology has gradually matured. Because LED has the concept of green energy saving, optoelectronic technology represented by LED technology is considered to be the most promising industrial technology in the 21st century.
In the 1970s, China's LED materials and devices began to take shape. In the 1980s, the industry was formed. In the early 1990s, it had a considerable scale and then developed rapidly, but the production companies were mainly concentrated in the downstream of the industrial chain. In 2007, the output value of China's LED industry was about 50 billion yuan. In 2008, driven by the Beijing Olympic Games, the output value of China's LED industry was about 70 billion yuan. In 2009, despite the impact of the global financial crisis, the output value of China's LED industry was also about 83 billion yuan. This shows the growth rate of the LED industry market. It should be noted that the above is not counted in Taiwan.
Sorted by country and region, Japan and the United States are currently leading the technology. Germany and South Korea also have considerable technical reserves in certain branches of LED technology. According to market share, Japan and Taiwan are ranked in the top two, the United States and the European Union. Followed by mainland China. Major manufacturers in the international LED patent technology include Nic Hia, Toyoda Gosei, CREE, Philips Lumileds, Osram and others.
With the development of economic globalization, intellectual property rights have increasingly become the focus of international competition. Intellectual property rights usually include patents, trademarks and copyrights. They are regional in nature. For example, US patents can only have rights in the United States. At the same time, intellectual property is also an important strategic resource for the state and enterprises. On June 5, 2008, China's "National Intellectual Property Strategy Outline" was officially promulgated and implemented, and it was proposed that the intellectual property strategy should be regarded as an important national strategy and the IPR work should be strengthened.
In the field of LEDs, patent litigation has been one after another, and the wave of patents in the upstream and middle reaches of the LED industry is mainly concentrated in the hands of foreign companies. That is to say, foreign companies have mastered the initiative of patent strategy.
In summary, the LED industry has a wide market and bright prospects; while China's LED industry has to face severe patent problems due to the lack of core patent technology, it must bypass patent barriers and avoid patent traps to win the market and win development.
LED industry crisis
1. Investigation of Section 337 of the US International Trade Commission
Section 337 is the United States' legislation to investigate unfair practices in import trade. Named after the initial provision of Section 337 of the tariff and trade ac t. It involves unfair trade in intellectual property rights and refers to the sale of products that infringe the copyright, patent, trademark, integrated circuit layout design rights and design scheme rights protected by US law after import or import in the United States. As long as the technology used in the products under investigation does not have intellectual property rights in the United States, even if it has intellectual property rights in the exporting country, it infringes on the relevant intellectual property rights of the United States, and the responding fee is almost no less than one million US dollars. Even if it is determined that the respondent does not have infringement or unfair trade practices, the plaintiff will not be required to bear any liability.
Sanctions include: limited exclusion orders, general exclusion orders, temporary exclusion orders, cease and desist orders, seizures, and confiscation orders. Sanctions only recognize products that do not recognize people. For example, a universal exclusion order issued may prohibit the import of any infringing product.
Gertrude Neumark Rothschild, a retired professor at Columbia University, is based on the belief that his US patent 5252499 was infringed. On February 20, 2008, he applied to the US International Trade Commission (ITC) for "short-wave LEDs, laser diodes, and 337 containing the above products." The article investigation filed a lawsuit against more than 30 companies in the world using similar products. The list of Chinese companies involved included four companies in Guangzhou and Shenzhen; two of them actively responded and reached a settlement with the rights holders in August 2008. And obtained the authorization of 2 patents, avoiding the problem of universal exclusion order and limited chip export. If the Chinese company does not sue or respond to the failure, all similar products of all Chinese enterprises are not allowed to enter the US market.
If you don't want to be targeted by Section 337, you must pay attention to two things: avoid infringement of others' patents; establish your own intellectual property protection. A patent search should be conducted first to determine if there is a US patent that may be involved in the product, or a US method patent that relates to the manufacturing method of the product. If there is a possibility of infringement, you can avoid infringement by replacing the non-patent method. It is also possible to obtain a license from the patent owner or to obtain an agreement with the US importer that the importer is responsible for the infringement. Moreover, for important products exported to the US market, US patents should be obtained as much as possible; even domestic industries can be considered, such as the proof of “US domestic industry†including: significant investment in building plants and equipment; investment in important capital Or labor services; made important investments in the development, design, research, and licensing of intellectual property products.
2. Patent search in German exhibitions
Germany is a leader in the European economy. It is known for its tradition of organizing various trade fairs. More than 50% of the world's leading exhibitions are held in Germany. For example, Hanover International Office Automation, Information and Communication Technology Expo (CeBIT), Berlin International Consumer Electronics Show (IFA). The German exhibition is one of the important ways for many Chinese companies to enter the European market.
In Germany, intellectual property rights holders can take the following measures against exhibitors: customs seizure of imported products, customs seizure of exhibits at the exhibition, civil injunctions, criminal search and detention, especially the latter is the most powerful weapon. In general, intellectual property cases are civil, and criminal measures are rarely taken in the early stages of development; however, as China's manufacturing industry continues to flourish and invade, the United States and Europe have gradually formed local protectionism in the intellectual property model, so there are many intellectual property cases. The trend of criminalization. Moreover, for German law, criminal search warrants are more readily available than temporary injunctions, so criminal search cases at the show are not uncommon.
For example, at the IFA exhibition in 2008, German Customs raided more than 20 enterprises in the China Pavilion on the grounds of “possibly infringement of patent rightsâ€, and confiscated a large number of exhibits such as TV sets, MP3s and mobile phones, including TCL, Haier and Hisense; At the same time, on the same day in Germany, there were negative reports on Chinese manufacturers ignoring intellectual property rights. Another example is the CeBIT exhibition. In 2008, the relevant searches involved 51 companies, 39 of which were from China (including the mainland, Hong Kong Special Administrative Region and Taiwan). In 2009, 24 companies from mainland China were involved, and 15 from Hong Kong and Taiwan. . There are four major companies on CeBIT that protect their patent rights on a large scale by applying for inspections, including Italian patent management companies Sisvel, Philips, Sony Ericsson and Swiss Army Knives, respectively, for MP3, DVD, mobile phones, and U disk infringement. These patent cases seem to be the tip of the iceberg, but what lies is the strategic competition between the state and the country, and the competition for market share between enterprises and enterprises.
In the above case, the strategy of the patent owner can be summarized as: first down the renegotiation. Due to the way of directly checking the products at the exhibition site, the exhibitors have no room for negotiation and can not take targeted preventive measures. The direct result of the search operation was that a large amount of materials and exhibits of the exhibitors were confiscated, and it was impossible to promote the products to European customers. The effect of the exhibition was very poor. The indirect result was a serious blow to the brand image of the exhibitors.
It is important to point out that: an LED display, if one of the LED chips used infringes a patent right of a patent owner in a certain country, the LED display may be seized at the exhibition in the country, and Unable to export to the country, resulting in the loss of the country’s market.
3. Nichia Chemical's patent litigation
Japan's Nichia Chemical Co., Ltd. is a well-known LED chip manufacturer. It has long been the market leader of blue LEDs and white LEDs, and has achieved sales of more than $12 billion in blue LED and white LED products.
Nichia tried to monopolize the Blu-ray LED market with a patent monopoly strategy and refused to license related patents to any other manufacturer. However, since the end of the 20th century, after several patent litigations have failed, it has been with Osram and Toyoda Gosei since 2002. , Philips Lumileds, CREE reached a settlement, patent cross-licensing. For example, dozens of patent lawsuits have occurred between Nichia and CREE, Nichia and Toyoda Gosei, Nichia and Osram, Nichia and Lumileds, with particular focus on patent litigation by Nichia and Toyoda Gosei around Blue LED.
The licensing agreement between Nichia and the other four companies is similar. The main purpose is to end the existing patent litigation and avoid future patent litigation. At the same time, for emerging companies in the LED industry chain, large companies such as Nichia still use pressure to maintain their market interests. Moreover, Nichia also defended its market by killing chicken-and-marriage patent litigation. For example, Nichia used a patent lawsuit with a Korean company to pressure another Korean company to purchase Nichia products.
Authorizations and disputes led by Nichia account for more than 50% of all LED licenses and disputes. It is expected that Nichia will continue to be dominant in major patent litigations for some time to come, and external authorization and mutual authorization will continue to increase.
4. Lessons from LED companies in Taiwan, China
China's Taiwan region, ranked by LED market share, currently accounts for about 25% of the global LED industry's output value, second only to Japan, ranking second in the world. Tracing back to history, the LED industry has made major breakthroughs, mainly due to the market segments that Japanese manufacturers ignore. For example, the LED industry in Taiwan has successfully achieved a big turnaround through the use of mobile phone LED backlight products as an entry point. Unlike the technology-driven approach of the United States and Japan, Taiwan is primarily implementing a low-cost strategy through a “capital-driven†approach, for example, by expanding production capacity and lowering prices to achieve growth.
On this basis, the subsequent market development is due to the low cost advantage of LED companies in Taiwan, forcing Japanese companies to gradually abandon the production of traditional low-priced chips and low-priced products, turning to high-brightness chips and high unit prices. The direction of the product development has freed up market space for the LED industry in Taiwan. Enterprises in Taiwan have mastered this opportunity to grow up and continue to grow and develop. Through more than 20 years of experience in the field of downstream packaging, they have gradually extended their reach to the epitaxial wafers and chips in the middle and upper reaches.
Although the LED industry in Taiwan has a certain scale, its development has been greatly restricted by patents due to its passive level at the patent level. Therefore, LED companies in Taiwan have submitted patent applications from various countries on the one hand, and actively obtained market entry qualifications through patent licensing on the other hand. For example, LED companies in Taiwan have more than 2,000 licensed patents and thousands of patent applications in the US, and their patent rights paid to US patent holders have reached more than $6 billion a year. Taiwan LED companies have also obtained patent claims from Japanese LED companies to counter the patent claims of Japanese LED companies. After Japanese companies such as Nichia Chemical and Toyota Synthetic Co., Ltd. opened patent licenses, Taiwanese companies have actively negotiated with several major LED companies in Japan in order to enter the high-end field. Some manufacturers have obtained patent licenses for Japanese LED companies in the upstream products of the LED industry chain. The history of the growth of LED companies in Taiwan is a history of breaking through in the cracks and successfully obtaining market breakthrough products. It is a history of rural encircling cities and winning markets at low prices. It is a history of armed capture of the market and many international and domestic patent litigations. In addition, to a certain extent, Taiwan LED companies have also reached industry associations and mediation of patent litigation.
However, although the global market share of Taiwan's LED industry is second only to Japan, its LED technology content is still quite a distance compared with major companies in Japan and Europe. With the development of LED industry in mainland China, the LED industry in Taiwan has transferred the industry to mainland China to obtain cheaper labor, lower operating costs and wider market space. Local LED companies in Taiwan have increased their packaging and application in the downstream of the industry, facing the severe market competition of LED companies in mainland China. Moreover, local LED companies in Taiwan have to face the middle and upper reaches of the LED industry in the future, and also face LEDs in mainland China. Enterprise's severe market competition. Therefore, the local LED companies in Taiwan have great competitive pressures.
Patent distribution in LED industry
1. American LED patent
In the LED industry, the US Department of Energy has specially developed the US National Semiconductor Lighting Research Project. It plans to develop semiconductor lighting technology for 10 years and cost US$500 million. The main purpose is to make the United States lead in the future lighting source market competition. Competitors in Japan, Europe and South Korea. The planned time nodes and luminous effects are: 20 lm/W in 2002; 75 lm/W in 2007; and 150 lm/W in 2012. It can be considered that it has achieved its goals ahead of schedule.
From the USPTO patent database, approximately 34,000 authorized patents related to LEDs were retrieved, of which approximately 25,000 were granted from 1990 to 2008.
From the perspective of the number of patents, it can be seen that the LED industry in the United States is in a period of rapid development. Applicants for US LED patents are mainly various types of enterprises and research institutions, including large enterprises and numerous small and medium-sized enterprises; the application direction is mainly focused on LED chips and lighting, especially the high-tech epitaxial wafer manufacturing technology and LED chip manufacturing technology. aspect.
Foreign applicants for US LED patents are mainly Japan, Taiwan, Germany, and South Korea. Foreign applicants are mainly large-scale LED manufacturers. The number of LED patents in mainland China is small.
2. China LED patent
In 1968, the Changchun Institute of Physics of the Chinese Academy of Sciences successfully developed the first LED in mainland China. In the 1980s, China's LED materials and devices have formed an industry. In the 1990s, it began to develop rapidly. Enterprises mainly concentrated on the packaging downstream of the LED industry chain. And application aspects.
In terms of quantity alone, China has the largest number of LED patents in the world's top five. Among them, the number of patents in mainland China is located behind the United States and Japan, roughly equivalent to Germany and Taiwan, but there are a considerable number of utility model patents. .
However, in mainland China, in the field of epitaxial technology and chip structure in the upstream and middle of the LED industry chain, the number of patent applications is much lower than that of Japan and the United States, and lower than that of Germany and Taiwan; the number of patent applications for substrate technology in mainland China It is roughly equivalent to the United States. The number of patent applications for phosphor materials is second only to Japan. The number of patent applications for packaging technology is roughly equivalent to that of Taiwan, and the number of patent applications for LED applications has exceeded that of the United States and Japan.
Moreover, before 2006, the main components of LED invention patent applicants in mainland China were the undertakers and implementation units of the National 863 Program, such as the Institute of Semiconductors, Institute of Physics, Changchun Institute of Optics, Nanjing University, Peking University, Tsinghua University, Zhejiang University and Nanchang University. At that time, China's overall emphasis on LED basic research and development was not strong enough, but the key factor may be that the patent awareness of enterprises and even research institutions is not strong enough. After 2006, the number of patent applications corresponding to LED companies as LED invention patent applicants increased rapidly, indicating that Chinese LED companies have greatly strengthened their technological strength and patent protection awareness with the development of the market, knowing that they need to apply for patents. Patents can bring wealth and avoid risks.
Brief introduction of the patents of the five major enterprises in the LED industry
1, Nichia
Japan Nichia Corporation is a world-renowned LED chip manufacturer with 439 US patents, 210 US patent applications, 183 public European patents, 185 public Chinese patent applications, and 3 utility models. Patent and 178 design patents.
Nichia has long refused to license patents. At present, it mainly cross-licensed with major LED companies and adopted a patent litigation suppression strategy for SMEs, especially new market participants.
2. Toyoda Gosei
Japan's Toyota Synthetic's main LED products are GaN-based semiconductor LEDs, which currently have 1,627 US patents, 746 US patent applications, 382 public European patents, and 420 published Chinese invention patent applications. Utility model patent and 8 design patents.
Similarly, similar to Nichia, Toyoda Gosei initially had less patent licenses for external LED companies, and has since gradually extended external patent licenses, including Taiwanese companies in China.
3, CREE
Cree is the world's leading manufacturer of SiC substrate type LED chips. It currently has 461 US patents, 311 public US patent applications, 407 public European patents, 153 published Chinese invention patent applications and 7 design patents.
Unlike Nichia's patent strategy, CREE is more inclined to operate patents externally. Through patent licensing and patent cooperation with other LED companies, CREE has signed patent licensing agreements with Japan's Nichia, Toyoda Gosei, and Mitsubishi Chemical Corporation.
4, Philips
Philips in the Netherlands has completed the integration of the middle and lower reaches of the LED industry chain. Its position in the LED field is mainly due to the acquisition of patents of other companies and related technologies, especially its acquisition of Lumileds, thus achieving a large-scale Vertical expansion. For example, in 2005, Philips acquired Agilent's Lumileds shares for $765 million. Lumileds has dominated the field of high-power LED chips with 225 US-issued patents, 160 US patent applications, and 198 disclosures. European patent. In 2006, in 2006, Philips acquired the European lighting manufacturer PLI for 561 million euros; in 2007, Philips acquired US display control company Color Kinetics for 592 million euros, which has 76 US-issued patents, 90 US patent applications and 41 US patent applications. A public European patent; in 2008, Philips acquired the US lighting fixture manufacturer Genlyte Group for $2.7 billion, with 54 US-issued patents, 44 public US patent applications, and 2 public European patents. There are still many related cases, and the space is not listed here.
Philips often authorizes third parties to enact patent rights, for example, in the above-mentioned German exhibitions, it has taken a lot of action as a right holder.
5, Osram
Osram is a wholly-owned subsidiary of Siemens, one of the world's two largest light source manufacturers, with a research and development and manufacturing base in Malaysia. Osram currently has 1,270 US-issued patents, 746 public US patent applications, 1,271 public European patents, 9 published Chinese invention patent applications, and 22 design patents.
As a European company, Osram has a large number of foreign patents. For example, it has adopted rights collection and other means to authorize Taiwanese companies such as Yiguang, Guangbao and Hongqi. One way of operation of Osram is to charge a new NT$200 million. The license fee is then 4 to 7% of the premium for each product.
LED industry patent strategy research
1. Learning from history
In the patent strategy of the LED industry, you can refer to the various lessons that have occurred.
For example, Nichia has been involved in a number of LED lawsuits in the past ten years. As other companies continue to invest in the development of basic technologies in the field of LEDs, and the number of patent applications filed is increasing, the number of patents granted is also increasing. As a result, Nichia's patent litigation failure rate has become higher and higher, resulting in a patent settlement with the above companies. This is a very typical success story for most LED companies in China that are still in the downstream of the LED industry chain.
As mentioned above, the development history of LED companies in Taiwan has also given important lessons to LED companies in mainland China. On the one hand, they have spent a lot of money to obtain many authorized patents in the United States, and on the other hand, they need to give foreign patent holders a large amount of Patent licensing fees, this is not a dangerous precedent. Be wary of LED companies in mainland China not to adopt a follow-up strategy forever, resulting in being subject to people.
Another example is the impact of the 337 series of cases, etc., many of these cases, no longer described here.
2, based on innovation
As the scale of the LED market continues to grow, LED companies continue to grow and develop, but this will inevitably face two problems: First, foreign patent holders are accustomed to using water-discharging and fish-raising strategies, and patent litigation is used to draw years of repayable Chinese companies. Profits; the other is the growing number of companies that are flooding into the LED market, resulting in lower profit margins. At the same time, China's LED industry is mostly concentrated in the downstream industries with low technical level. The scale of enterprises is small, the technical equipment is backward, the patent technology lacking independent innovation, the obstacles of foreign core patents, and the long-term dependence on low-cost manufacturing advantages, profit margins. Getting smaller and smaller.
Therefore, Chinese LED companies should vigorously strengthen technological innovation, increase the number and quality of patents, cultivate patent early warning capabilities, and improve the level of creation, use, protection and management of intellectual property rights, thereby avoiding patent barriers of foreign companies. Enterprises applying for patents can effectively protect and utilize domestic patented technologies. At the same time, on the basis of foreign patent technology, through the improvement of its core patents, improve the technical effect, and apply for its peripheral patents, this is also an innovative model to strengthen their own strength.
On this basis, LED companies can legally deal with infringements and legal proceedings involving intellectual property rights. According to the above examples, Chinese LED companies are better able to research advanced technologies, accurately judge market development trends, and complete patent planning applications. Opportunity to obtain core patents to promote China's LED industry to occupy the commanding heights of LED patents.
For example, for an LED company, different patent strategies can be formulated at different times of the company's development. The patent strategy is best able to lead the enterprise's R&D planning strategy. Before the enterprise technology project is established, it will start the patent search, find the patent barriers, avoid the patent trap, and avoid the product adopting the patent right of others, so as to guide the technology research and development through patent planning. Planning direction. The patent strategy must be implemented. We must not only pay attention to the quantity regardless of quality. A simple patent certificate can never bring market value to LED enterprises. The patent strategy only pays attention to the operation, so that the patent can produce real economic benefits, thus achieving the patent value for the enterprise.
3. Subject to the law
According to the principle of national sovereignty, there are many differences in the scope and specific operation of patent protection in national patent laws. For example, the interpretation of patent rights, the protection of the interests of patent holders, etc., therefore, Chinese LED companies should pay attention to the regional nature of patents when avoiding patent barriers.
For example, the United States interprets the scope of claims in a pervasive manner, that is, the scope of protection of patent rights is completely determined by the text of the claims, and cannot be extended. The alleged infringement must repeatedly reproduce all the technologies described in the claims. Features are considered to fall within the scope of patent protection. Chinese LED companies can clearly understand the scope of protection of relevant patent rights through claims, and do not have to make random speculations, so they can focus on patent evasion of product design; at the same time, US law is a case law, and the judgment of the previous case is for the case There are decisive influences, so patent evasion can also be achieved by studying the previous cases.
In another example, Europe and China usually adopt a centrally defined system, that is, when understanding and interpreting the scope of the claims, centering on the basic kernel stated in the claims, an expanded interpretation can be made outwards, and the scope of patent rights is not limited to rights. The literal meaning of the requirement can provide a wider protection to the patentee, which leads to the fuzzy state of the patent protection, and can not accurately determine the scope of protection of the patent according to the claims.
Therefore, LED technology that is not patented in China can be directly applied in the domestic market or exported to areas without patent protection.
Moreover, it is necessary for Chinese LED companies to select the patent application country according to the value of the patent. For example, is it only to apply for a patent right in China? Is it necessary to apply for a patent in other countries or regions? Is it necessary to adopt the patent PCT international application method? According to their target markets, Chinese LED companies choose the right country for patent planning and layout, and obtain patents with a certain quantity and quality.
4, based on the alliance
In summary, the patent strength of Chinese LED companies is still relatively weak. Whether it is an external strategy--purchase license or internal strategy--technical innovation, patent application, it takes a considerable amount of time and resources to accumulate strength; However, opponents are always on the sidelines, it is difficult to see that they will leave enough development time and technical space for Chinese LED companies.
Therefore, in the face of the powers, it is not the best policy to go it alone. A better way to cope is to jointly deal with infringements and legal proceedings involving intellectual property through associations or alliances. Specifically, the establishment of a substantial enterprise intellectual property alliance is to unite some domestic enterprises with intellectual property advantages, including the advantages of patent quantity and patent management advantages, and unite Chinese LED enterprises to form an intellectual property alliance authorized by each other. So as far as possible to avoid the nest.
On this basis, it is also possible to consider the performance standards of Chinese LED products, appropriately raise the threshold for foreign LED products to enter the domestic market, and strive to achieve patent cross-licensing with foreign companies through standard specifications.
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