Intellectual Property Disputes Have Gradually Joined The Market Competition

Intellectual property disputes have gradually joined the market competition.

Sanan optoelectronics Co., Ltd. (600703. Sh, hereinafter referred to as "Sanan optoelectronics") and Huacan optoelectronics Co., Ltd. (300323. SZ, hereinafter referred to as "Huacan optoelectronics"), which has the largest market share in the domestic LED chip industry, is involved in a patent dispute involving the basic technology of LED chips, which is listed as one of the major events in 2020.

On September 3, 2020, Sanan optoelectronics filed two patent infringement lawsuits against Huacan optoelectronics and its subsidiaries, demanding that Huacan optoelectronics compensate for economic losses totaling 80 million yuan. According to relevant information, Sanan optoelectronics accused Huacan optoelectronics, Huacan Optoelectronics (Zhejiang) Co., Ltd., Huacan Optoelectronics (Suzhou) Co., Ltd. and others for infringement of their No. zl201210286901.2 invention patent and zl02142952.9 invention patent, the patent names are "nitride semiconducting light-emitting device and its manufacturing method" and "semiconductor light-emitting element and semiconductor light-emitting device" ”。

The above two patents relate to the basic technology of LED chip manufacturing. Sanan optoelectronics believes that Huacan optoelectronics has violated its patent technology in improving light extraction efficiency and hole injection efficiency in nitride LED manufacturing. Huacan optoelectronics said: "through the analysis of the company, the relevant products produced by the company do not have patent infringement, and the company has entrusted relevant lawyers to actively respond to protect the legitimate rights and interests of the company."

Changsha intermediate people's Court of Hunan Province has issued the acceptance notice for the lawsuit of San'an optoelectronics. The reporter of 21st century economic report learned that as of January 22, the case was in progress in accordance with the legal procedures and had not yet been heard in court.

"This patent infringement lawsuit is an embodiment of the direct participation of intellectual property rights in market competition." Zhou xueteng, partner of Beijing Zhengxin law firm, told 21st century economic reporter on January 18 that from the perspective of LED chip market share and revenue scale in 2019, San'an optoelectronics and Huacan optoelectronics are both in the top of the industry, and there is a long-term market competition relationship between the two listed companies.

In fact, the head companies in the LED industry have been increasing R & D investment in recent years. -Visual China

In Zhou xueteng's opinion, Sanan optoelectronics and Huacan optoelectronics are the leading companies in the industry, and the industry concentration trend is obvious. "At the industry development level, this lawsuit will affect the potential or actual market share of the two enterprises. According to the follow-up progress of the case, the two enterprises may sign a settlement and cooperation agreement to accelerate the degree of industry concentration; on the economic level, the lawsuit will cause the share price fluctuation of both companies, and the infringed enterprises may obtain relevant infringement compensation; in terms of intellectual property distribution, the two enterprises may obtain relevant infringement compensation At the level of goodwill, the two enterprises will definitely pay more attention to intangible assets such as trademarks, patents and trade secrets in the future; in terms of goodwill, the lawsuit will enhance consumers' awareness of the LED industry, product performance and the brands of the two enterprises. "

Some industry experts pointed out that the intellectual property dispute between Sanan optoelectronics and Huacan optoelectronics reflects that China's LED industry is paying more and more attention to innovation, which is conducive to the improvement of the overall strength of China's LED industry in the long run. "This landmark event also shows that the competitive logic of the whole industry is being rewritten. The head companies with strong R & D capabilities will benefit more from the new competitive logic, and the competitiveness of small and medium-sized companies will be further weakened."

"In the context of economic globalization, intellectual property has increasingly become the focus of international competition. To enhance the awareness of intellectual property rights is conducive to enterprises to explore the international market and master the initiative of patent strategy; for the domestic market, it can stimulate the enthusiasm of enterprises in production and research, and promote the development of enterprises to focus on core competitiveness." Zhou xueteng, partner of Beijing Zhengxin law firm, said.

check evidence of both parties at court

This is the first time that the intellectual property conflict broke out between the two leading companies in the LED industry in mainland China.

The LED epitaxy involved in the lawsuit is the base material of the LED chip, which is a light-emitting material layer formed by stacking and combining multi-layer semiconductor materials. The luminous effect can be improved by adjusting the semiconductor material layer; the LED chip is a single LED luminous body formed by various pattern design, electrode design, grinding, cutting, dicing, sorting and other processes on the epitaxial substrate material Adjusting the electrode structure can improve the hole injection efficiency and further enhance the luminescence effect.

Some people in the industry pointed out: "the luminous effect is very important for the LED chip, and the above basic technology is indispensable for the manufacturing of LED chip, and its product application field is very wide. Mini LED chips also involve the above technologies. "

According to the claim raised in the lawsuit, Huacan optoelectronics was required to stop manufacturing, promise to sell and sell applications infringing on the above patents, including TV backlight, consumer display backlight, vehicle display backlight, LED chips in the fields of display and lighting, destroy all equipment and related molds used to produce infringing products, and compensate San'an optoelectronics with a total economic loss of 80 million yuan. Huacan optoelectronics believes that the relevant products produced by the company do not have patent infringement.

Although the future direction of the case is still unknown, the negative impact on Huacan optoelectronics is limited. Near the Spring Festival, Huacan photoelectric related people said recently that the company has issued a notice, this spring festival will not stop production. Prior to that, Huacan optoelectronics disclosed the full year performance profit forecast of 2020. In 2019, Huacan optoelectronics lost 1.048 billion yuan, while in 2020, it is expected to achieve a net profit of 16 million to 24 million yuan belonging to shareholders of listed companies, turning losses into profits.

From price war to patent war

In the process of accelerating market concentration, R & D capability has gradually become the "killer mace" for head companies to increase their share, which also leads to the continuous litigation of intellectual property disputes.

Sanan optoelectronics and Huacan optoelectronics are both the first echelon enterprises in the LED chip industry. The patent dispute between the two leading enterprises means that the competition between domestic chip leading enterprises has been promoted from price war to patent war. Among the leading enterprises, the increase of patent wars is an inevitable trend, which will become the competition norm of the leading enterprises in the LED industry and highlight the importance of intellectual property barriers.

In fact, the head companies in the LED industry have been increasing R & D investment in recent years. From 2017 to 2019, the R & D investment of San'an optoelectronics accounted for 6.34%, 9.64% and 8.69% of the operating revenue respectively; in the same period, the R & D investment of Huacan optoelectronics also accounted for 4.9%, 6.73% and 7.9% of the operating revenue.

According to the public information, as of the end of June 2020, Sanan optoelectronics has more than 2100 domestic and foreign patents, and is still increasing research and development efforts and improving the patent layout. Huacan optoelectronics attaches equal importance to patent layout. As of December 31, 2020, Huacan optoelectronics has applied for more than 1000 patents and 663 valid patents, including 583 invention patents.

Sanan optoelectronics and Huacan optoelectronics are catching up with each other in terms of patents, which also shows that the LED industry is "stratified". If the industry competition is compared to a marathon, the two companies are in the first square. The two companies have entered the stage of intellectual property competition from simple price and scale competition, and the industry pattern is changing.

As an important chip supplier in the LED industry, Huacan optoelectronics has established an intellectual property moat in LED chips, especially new products and applications such as mini / micro led, and forward-looking technologies. Meanwhile, Sanan optoelectronics has been constantly adding weight to the intellectual property protection system, and has demonstrated the independent research and development level and ability of the head office.

Huacan optoelectronics said that the current lawsuit has no impact on the company's production and operation. "In the first three quarters of 2020, thanks to the adjustment of product structure and fine management of the company, the market share of backlight products of the company has increased significantly, and the shipment volume of mini LED has continued to increase rapidly. The company adheres to win-win cooperation with customers, and continues to stay ahead of competitors in multiple market segments."

Frequent patent disputes

As the core intangible assets of enterprises, the market-oriented competition situation of intellectual property rights will even affect the IPO process of enterprises.

In 2019, Anhan technology, another domestic enterprise, was sued by Chongqing Jinshan for infringement of its eight patent rights, and its IPO process was forced to stop.

On March 22 of that year, Anhan technology's application for listing was accepted. On May 20 of the same year, Chongqing Jinshan filed a lawsuit with Chongqing No.1 Intermediate People's court for infringement of eight patent rights by Anhan technology, claiming 50 million yuan. The patent case of both parties was thus launched. The case also affected the IPO process of Anhan technology, which said it had to withdraw its listing application due to the patent case.

According to Zhou xueteng's analysis, for high-tech enterprises, listing financing is a good way to obtain funds. Enterprises can make the scale of enterprises grow rapidly by using the capital market, and at the same time, it may bring pressure on competitors. "In the process of listing on the science and technology innovation board, technology-based enterprises often encounter patent lawsuits from their competitors. Interrupting the IPO process often increases the uncertainty of the listing of enterprises and exposes potential problems in the development of enterprises, which will affect enterprises to expand financing channels, cause enterprises to tend to reduce the amount of investment in factories and equipment, and reduce patent applications in the preparation stage of listing."

In August 2020, Anhan technology won the lawsuit. But for its re application for listing, all the process is still unknown. Zhou xueteng pointed out: "Anhan technology, as one of the first batch of nine enterprises accepted by the science and technology innovation board, has received a high degree of attention. In combination with Anhan technology's prospectus and the decision of Shanghai Stock Exchange's No. 11 regulatory measures in 2020, Anhan technology, as an enterprise with capsule endoscopy as its main business, has its own source of customers There is room for improvement in the product structure, revenue generation and profit model and financial supervision. If the inquiry can not be solved, the process of Anhan technology's re application for listing will be affected. "

According to the open inquiry data of the science and technology innovation board, in the face of enterprises with intellectual property disputes, the audit inquiry mainly focuses on whether the enterprise has the core technology, innovation strength, and the ability to continuously generate income, profit and continue operation. Therefore, in terms of the strategic layout of intellectual property rights, scientific and technological innovation enterprises should strengthen the maintenance and construction of intangible properties such as patents, trademarks, proprietary technologies, franchise rights, data, trade secrets, etc., and lay out the intellectual property work in advance from the aspects of professional team building, system construction and intellectual property protection measures reserve.

"For enterprises that have existing intellectual property problems and are facing a passive situation in intellectual property litigation during the listing process, they can first reduce the negative impact of being sued by means of Risk Declaration, actual controller commitment and risk divestiture, and employ a team of lawyers to deal with" patent sniping ". The common ways are: lawyers provide non infringement analysis; invalid intellectual property involved Or objection; and the way of initiating counterclaim or seeking settlement to resolve the problem. " Zhou xueteng provides a possible solution to the IPO companies.

Intellectual property protection

In recent years, the state has been increasing its efforts to protect intellectual property rights.

On January 1, 2019, the intellectual property court of the Supreme People's court was established. On September 14, 2020, the Supreme People's Court issued the opinions on strengthening the punishment of intellectual property infringement according to law, stipulating and improving the judicial relief measures of intellectual property rights, so as to effectively curb the infringement.

Luo Dongchuan, vice president of the Supreme People's court and President of the intellectual property court, introduced that in 2019, the intellectual property court concluded a number of highly professional and technical intellectual property cases in accordance with the law, further promoting the unification of the judgment scale of technical intellectual property cases, and providing a strong guarantee for China's innovation driven development.

Taking LED industry as an example, in Zhou xueteng's opinion, the main type of intellectual property disputes in LED industry is patent infringement disputes. "In recent years, led enterprises continue to go out, not only domestic litigation cases, but also foreign-related or international litigation are more common; among them, the main demands of cases are to stop infringement and compensate for losses, and the amount of compensation is often higher. The difficulty of this kind of cases lies in the fact that China's LED manufacturers are in the downstream of the industrial chain in the early stage. Compared with the United States and Japan, there is a lack of patents in the early and basic core technologies. In the litigation, we need to do a good job in patent identification and screening. Secondly, as a high-tech technology, optoelectronic technology has the characteristics of fast update speed and short cycle, and its protection period is relatively special. Therefore, it is necessary to protect the rights strategically according to the actual needs of enterprises in litigation. At the same time, the process of patent examination needs to be more professional, and each case needs to carry out technical feature comparison, standard correspondence analysis, collection and analysis of prior use evidence, etc

On the other hand, in recent years, with the improvement of China's innovation ability, Chinese enterprises have developed rapidly in the field of high-tech innovation, which is easy to pose a threat to international competitors. Therefore, in the process of exporting products, there are often various trade barriers, which become the object of patent infringement complaints, trying to prevent Chinese enterprises from entering the foreign market through "patent blocking".

"Before going global, Chinese enterprises can employ a professional team of lawyers, internal or external professional institutions to study, carry out the strategic layout of intellectual property in advance, and clarify the differences between China and the target market countries in the legal system of intellectual property protection. On the one hand, they should strengthen the application for international patents, take timely intellectual property protection for innovative achievements, and for core products that need to be exported On the other hand, we should do a good job in the investigation and analysis of the intellectual property rights of the target market countries to avoid infringing other people's intellectual property rights; for the situation that may be identified as infringement after analysis, we can try to cooperate with foreign businessmen and enter the foreign market through OEM, patent licensing or joint venture, so as to achieve a win-win situation. " Zhou added.

In the intellectual property protection war of enterprises, Zhou xueteng suggested that enterprises should establish R & D teams with innovative capabilities; secondly, enterprises should plan the layout of intellectual property rights in combination with business policies, and gradually formulate and improve intellectual property system; enhance intellectual property awareness, carry out intellectual property layout simultaneously in R & D work, and regularly warn the risk of enterprise core business 。

"In addition, the establishment of an enterprise's intellectual property management system can not only rely on the enterprise itself, but also be completed more efficiently with the help of external professional organizations." Zhou xueteng added that, for example, in the early stage, it is necessary to prepare a professional backup team for intellectual property rights, hire professionals or professional institutions with patent retrieval and writing ability, and patent litigation related experience; employ intellectual property service institutions with high-tech (AI technology) to carry out risk early warning in the field of intellectual property, and carry out systematic risk of enterprise related intellectual property Screening can eliminate the litigation risk in the bud by taking invalid, objection, avoiding design and non infringement confirmation.

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