Long Warning Bell | Interpretation of Key Compliance Points for Intellectual Property and Scientific and Technological Achievements Management

Science and technology are the primary productive forces. Since the 18th National Congress of the Communist Party of China, China has deeply implemented the innovation-driven development strategy, and scientific and technological innovation has become an important support for the country's economic development. In recent years, China's national financial investment in science and technology has continued to grow, effectively ensuring the rapid development of science and technology, and all sectors of society expect scientific research to produce scientific and technological innovation results faster and better. At the same time, Shenzhen Bay Laboratory is committed to strengthening the risk awareness of scientific researchers engaged in innovation and entrepreneurship, supporting the protection and transformation of intellectual property rights and scientific and technological achievements in accordance with the law, and effectively protecting the legitimate rights and interests of Shenzhen Bay Laboratory and scientific researchers.

 

I. Overview of Intellectual Property Rights and Scientific and Technological Achievements

Intellectual property rights include patent application rights and patent rights, copyrights and their neighboring rights, trade secrets (including technical secrets), trademark rights, exclusive rights of marks, etc. Scientific and technological achievements refer to the achievements with practical value produced through scientific research and technological development, including patented and non-patented technologies, processes, methods, designs, products, materials, etc.

In order to effectively improve the level of intellectual property creation, protection, application and management, promote the transformation of scientific and technological achievements, and encourage the enthusiasm of invention and intellectual creation, Shenzhen Bay Laboratory has issued the Administrative Measures for the Protection and Transformation of Intellectual Property Rights and Scientific and Technological Achievements of Shenzhen Bay Laboratory (Trial) and other management measures. In order to better implement the relevant policies and regulations, we have compiled the "Interpretation of the Key Points of Intellectual Property and Scientific and Technological Achievements Management Compliance" in accordance with the management measures to help everyone effectively "know, respect and abide by the rules". It is hoped that everyone will strengthen their sense of responsibility, integrity and self-discipline and compliance, consciously improve their ability to resist corruption and prevent degeneration, and ensure the healthy, orderly and sustainable development of laboratory scientific research.

The matters that need attention in the management of intellectual property and scientific and technological achievements are explained.

(1) The basic business process of intellectual property rights and the management of scientific and technological achievements

The basic business process generally includes four links: project establishment, obtaining results, disclosure protection, and transformation of achievements, each link has more detailed business activities, and the operation process needs to be combined with its own reality, and cannot be rigidly applied.

(2) Major risk warnings for the management of intellectual property rights and scientific and technological achievements

The risks of intellectual property rights and scientific and technological achievements mainly come from the lack of core technology, unclear ownership, backward technology, and major technical safety risks, which may lead to legal disputes and weak sustainable development ability. Based on the basic business processes, we summarize the main risks as follows:

1. The project establishment is not standardized but comprehensive feasibility analysis, collective deliberation or exceeding the authorized approval, which may lead to major errors, fraud and fraud, resulting in repeated development, R&D failure and waste of resources.

2. For patentable technical solutions that are suitable for patenting, the failure to formulate a patent application strategy may lead to delays in the filing of patent applications.

3. The ownership of intellectual property rights and scientific and technological achievements obtained is unclear or the rights are defective, which may cause legal disputes and economic losses.

4. The disclosure of registration records is not timely, inaccurate and complete, which may lead to loss of value, distortion of information, inconsistency of accounts, etc.

5. Lack of strict confidentiality system, confidentiality work is not in place, may cause the risk of intellectual property rights and scientific and technological achievements being misappropriated, leakage of trade secrets, and loss of economic interests of the unit.

6. Failure to check and evaluate the use in a timely manner may lead to the failure to upgrade the contained technology in time, further leading to backward technology or major technical safety hazards in the unit.

7. Due to the neglect of the management of intellectual property rights such as trademarks, other units infringe and seriously damage the interests of the unit.

8. The transfer or valuation investment contract does not comply with the requirements of national laws, regulations and internal rules and regulations such as the Contract Law, and may cause legal proceedings.

9. Irregular disposal, unclear division of duties, unclear processes, and arbitrary disposal of intellectual property rights and scientific and technological achievements without attracting sufficient attention to the disposal business may increase disposal costs, reduce disposal efficiency, and cause unit losses.

(3) Compliance points for the management of intellectual property rights and scientific and technological achievements

Shenzhen Bay Lab has formulated management measures for the management of intellectual property rights and scientific and technological achievements, implemented the management responsibility system, promoted the effective use of intellectual property rights, and given full play to the role of scientific and technological achievements in the core competitiveness of Shenzhen Bay Lab. Compliance points to pay attention to in the management process include the following aspects:

1. When cooperating in research or development projects or accepting research commissions, a contract must be signed and the ownership of intellectual property rights or scientific and technological achievements must be clearly stipulated in the contract.

2. Before the scientific and technological achievements of their duties are published to the public, the patentization of the results must be evaluated, and if they intend to apply for a patent, they must submit the patent application to the State Intellectual Property Office before they can participate in public activities or conduct appraisal of achievements.

3. When the intellectual property rights of others or other units are transferred, or when other units or individuals cooperate with laboratories with their intellectual property rights, the transferee shall conduct a comprehensive investigation of the legal status of the intellectual property rights to ensure that there are no defects in rights.

4. When importing technology and equipment from home and abroad, the contract must stipulate that the party to be introduced shall bear the responsibility for intellectual property defects of the imported technology or equipment to prevent disputes.

5. Before the transformation of intellectual property rights or scientific and technological achievements, a qualified third-party appraisal institution must be entrusted to conduct value assessment, and the proposed transaction price shall be approved on the basis of not less than the appraisal price, and if there is a major conflict of interest in the transaction, the relevant personnel shall recuse themselves.

6. Before signing an intellectual property or scientific and technological achievement transformation contract with a partner, it must be approved and publicized, including the completer, name, proposed transaction price, price formation process and objection handling procedures.

7. Those who use their intellectual property rights and scientific and technological achievements to engage in the establishment of enterprises and other acts shall only be carried out with the consent of the laboratory. Disclosures involving intellectual property rights and scientific and technological achievements on duty shall strictly comply with the relevant provisions on confidentiality.

8. Do not use authority, work convenience or other improper means to infringe the intellectual property rights and interests of laboratories by publishing, leaking, licensing, transferring and using.

 

Second, be disciplined, talk about rules, be honest and self-disciplined, and abide by the bottom line

With the prominence of the value of intellectual property rights and the improvement of awareness of intellectual property protection, intellectual property rights protection cases have also increased. In 2021, the people's courts heard a large number of civil, administrative and criminal IP cases, and the number of IP cases accepted and concluded reached a record high, both exceeding 60,<>. Intellectual property cases are characterized by problems such as "difficult to adduce, low compensation, high cost and long cycle". The vast majority of scientific researchers can do a good job in the management and use of intellectual property rights in accordance with the requirements of laws, regulations and policies, but there will also be some violations of discipline and law, and some trade secret related personnel have been arrested and sentenced, which has sounded the alarm for us.

(1) The crime of infringing on trade secrets

The crime of infringement of trade secrets refers to the act of acquiring, disclosing or using or allowing others to use the trade secrets of the right holder by improper means, causing major losses to the right holder of trade secrets. The relevant legal provisions of the Criminal Law of the People's Republic of China are as follows:

Article 219 Whoever commits any of the following acts of infringing on trade secrets, causing major losses to the right holder of trade secrets, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be fined concurrently or alone; If particularly serious consequences are caused, the person shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined:

1. Obtaining the trade secrets of the right holder by theft, inducement, coercion or other improper means;

2. Discloses, uses or allows others to use the trade secrets of the right holder obtained by means of the preceding paragraph;

3. Discloses, uses or allows others to use trade secrets in their possession in violation of the agreement or the right holder's requirements for keeping trade secrets.

Acquiring, using, or disclosing the trade secrets of others knowing or should have known of the acts listed in the preceding paragraph shall be guilty of infringement of trade secrets.

"Trade secrets" as used in this Article refers to technical information and business information that is not known to the public, can bring economic benefits to the right holder, is practical, and has been subject to confidentiality measures taken by the right holder.

"Right holder" as used in this Article refers to the owner of trade secrets and users of trade secrets licensed by the owner of trade secrets.

(2) Typical cases of crimes of infringing on trade secrets

On April 2021, 4, the Bao'an District People's Court of Shenzhen City, Guangdong Province issued a criminal judgment on the crimes of He Qingmei and Li Wulin for infringing trade secrets. One of the main offenders, He Qingmei, took advantage of her work convenience to obtain trade secrets by improper means and illegally made a profit of RMB 19,35, causing particularly serious consequences to the trade secret rights holder, and was sentenced to 000 years and 3 months in prison and fined RMB 3,35. The illegal gains in this case are not high in terms of common sense, what is the reason for the court to sentence the court on the basis of an act that "causes particularly serious consequences"? Let us review the history of this case together and take it as a warning.

In 2016, He Qingmei was also an employee of Futaihua Industry (Shenzhen) Co., Ltd. (hereinafter referred to as "Futaihua Company") and served as an engineer of the General Product Development Office of Guanlan Foxconn Products IPEG. Futaihua signed a manufacturing and production agreement contract with Apple, Apple provides 3D electronic graphics files of different product industrial designs to Futaihua's business group units to design, develop and manufacture processes, from virtual 3D production to achieve the goal of mass production, which adds to the need to cooperate with the customer security team in the process of R&D and production. Apple uploaded the image file to Apple's confidential website, and the administrator of the data center of the special security engineering office of Futaihua's business group downloaded it on the website. Futaihua business group is specialized in the development and manufacture of Apple mobile phone appearance shell, the employees inside must sign a confidentiality agreement, after signing these employee names and other information to Apple, Apple provides account and password, employees can log in to Apple's confidential website, view and download the information, including a new generation of Apple mobile phone appearance 3D electronic files.

At that time, He Qingmei lost money due to gambling and lacked money, so he wanted to use his work convenience to sell the design drawings of the Apple 8 mobile phone kept confidential by Futaihua for money. In December 2016, he downloaded and saved the 12D design drawings of the new Apple mobile phone from Futaihua's technology development platform to the inspection platform shared by employees, and then falsely claimed that the drawings were ordinary work materials, and asked his cousin with access to the authorized computer to download and store it on a USB flash drive. In February 3, He Qingmei handed over the USB flash drive containing the above design drawings to Li Wulin for trading and obtained RMB 2017,2.

In early April 2017, the design drawings were traded to digital enthusiast Zhang Kang after many transactions, and some netizens asked him about the Apple 8, he offered 80,000 yuan to netizens, and he also published an article "Exclusive: Foxconn's iPhone 8 hand-drawn drawing" on today's headline homepage, with 47,000 hits. On the evening of April 5, Zhang Kang asked Chu through WeChat whether he needed the latest Apple drawings, and paid a deposit of 40,000 yuan to see the screenshots of the drawings. Chu, who trades in mobile phone electronic accessories, received a screenshot of the latest Apple mobile phone rearview camera through WeChat after transferring 40,000 yuan to Zhang Kang's account at the Bank of Communications. After receiving the screenshot, Chu forwarded it to his friend Sun Moumou, who works at Apple in the United States, to confirm the authenticity of the drawing. Sun Moumou is a security officer of the legal department of Apple in the United States, responsible for the security investigation of Apple products. At about 11 o'clock on April 6, Chu deposited another 40,000 yuan into Zhang Kang's account at Bank of Communications, and at 12:13 on April 6, Zhang Kang sent the 3D design drawings of the appearance of the Apple mobile phone to Chu's mailbox. Chu sent the design drawing to Sun, and then the engineer at the US headquarters confirmed that the drawing was the appearance drawing of the latest Apple D22 project mobile phone that year, and the word IPEG was found on the log of the drawing, which can be confirmed to be leaked from Foxconn.

On April 2017, 4, Apple Inc. notified Futaihua that the electronic picture files of the latest generation of mobile phone products were leaked. On May 26, 2017, Futaihua reported the case to the public security authorities and submitted a copy of the 5D design drawings that Zhang Kang sent to the buyer.

Entrusted by the investigating authority, the Guangdong Security Computer Judicial Appraisal Institute issued the Guangdong Security Planning Division Jian No. 2020 Zhi 027 Judicial Appraisal Certificate for the design drawings, and determined that the four technical secrets of the structural design of the dual-camera module integration, the IMF precision buffer open wire design, the structural design of the wireless charging and heat dissipation intermediate plate and the integrated design of the new generation of user identification recorded in the drawings were not known to the public before April 27, 2017.

Entrusted by the investigative authority, Shenzhen Zhonghengxin Asset Appraisal Co., Ltd. issued the asset appraisal report of Shenheng Appraisal [2021] No. 3 on March 8, 2021, using the cost method to evaluate three of the above four technical secret points identified by Guangdong Anzheng Computer Judicial Laboratory that were not known to the public before April 013, 2017 (IMF precision buffer open wire design, wireless charging and heat dissipation intermediate plate structure design and integrated design of a new generation of user identification). As at 4 March 27, the valuation value of the above trade secrets was $4,3,2017.

The Bao'an District People's Court of Shenzhen Municipality, Guangdong Province, held that He Qingmei, Li Wulin and Zhang Kang and nine others had obtained the trade secrets of the right holders by improper means, and disclosed and allowed others to use them, causing particularly serious consequences to the right holders of trade secrets, and their acts constituted the crime of infringing trade secrets.

 

Third, use cases to promote reform, and alarm bells are ringing for a long time

As mentioned in our first part of the risk and compliance points, if intellectual property rights and scientific and technological achievements lack a strict confidentiality system and the confidentiality work is not in place, it may cause the risk of embezzlement, leakage of trade secrets, and loss of economic interests of the unit. No unit or individual may use its authority, work convenience or other improper means to infringe upon the intellectual property rights and interests of the unit by means of publication, disclosure, licensing, transfer and use.

Combined with the analysis of the case, Futaihua signed a manufacturing and production agreement contract with a confidentiality clause with Apple, signed a confidentiality agreement with the employees of the business group, and designed confidentiality-related control specifications and operation specifications with Apple, such as taking corresponding confidentiality measures for the drawings involved, and fully authorized employees to log in to Apple's confidential website to download the files. From the perspective of company management, it seems that preventive measures have been taken within the scope of responsibility: the drawings involved in the case are designed, developed and manufactured by engineers on the basis of the drawings provided by Apple, and the final physical object is produced from the virtual 3D drawings, and Futaihua is responsible for the confidentiality of the technical secrets of the drawings in the process of completing these work, and employees must sign a confidentiality agreement to enjoy the exclusive account and password provided by Apple. However, the result is that He Qingmei can still download and save the confidential drawings from Futaihua's technology development platform to the testing platform shared by employees, and there is a computer authorized to insert a U disk for copying, and with the shared IP address of the testing platform and the account and password of the login platform, it can be operated "without a trace". A closer look at the entire process of drawing theft reveals that there are many loopholes in the secrecy work that could have been used to monitor whether trade secrets have been leaked.

From the perspective of employees, He Qingmei, as an engineer of Futaihua's product development department, had the opportunity to access confidential mobile phone drawings and signed a confidentiality agreement, but still violated the criminal law because of the motive of gambling and lack of money, and the reasons behind it are also worth warning. He Qingmei believed that the drawings involved in the case were used to make mobile phone protective cases or produce simulators, and the assessment value was too high; His defender Wang Qun's defense opinion was that He Qingmei's act of obtaining and reselling the drawings involved in the case did not cause major losses to the victims, and the amount of illegal gains of 35,000 yuan was low, which did not meet the statutory standard for prosecution. In fact, the drawings involved in the case were developed by 75 core development engineers, and their valuation was 9,900,000 yuan according to the cost method, which caused particularly serious consequences and major losses, and if the infringement of trade secrets caused particularly serious consequences in accordance with the Criminal Law of the People's Republic of China caused particularly serious consequences, it was sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and a fine.

He Qingmei and others paid a huge price for the sake of small profits, and on the other hand, it also demonstrated the determination and confidence of the people's courts to protect intellectual property rights and maintain the order of fair competition in the market. Shenzhen Bay Laboratory has a wealth of scientific research papers and increasing patent applications and copyright registrations, only by continuously studying intellectual property rights and scientific and technological achievement cases, continuously optimizing and improving the management system and norms, and strengthening the protection of scientific and technological innovation achievements, can we continuously promote technological innovation and industrial upgrading, and encourage scientific researchers to innovate and create.

 

 

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