Source: IT Times
Reporter: 戚夜云 Hao Junhui
Even though in recent years, no effort has been spared in the field of patents, domestic mobile phone manufacturers have once again suffered the fate of patent litigation.
Before the National Day, a company called DARELTECH filed a lawsuit against Xiaomi in the United States, claiming that Xiaomi, which is sold in the United States, allegedly infringed four patents under DARELTECH. At the time when the focus was on Xiaomi, DARELTECH also targeted the domestic UAV head company Dajiang, which is an important market in the United States.
The "IT Times" reporter was exclusively informed that Xiaomi's attorneys will "reject the lawsuit application" as the main direction. In addition, it was also learned that the patent infringement of the self-timer is only "pre-dish", and "afterwards" is a comprehensive screen sliding cover patent for glory Magic 2, Xiaomi Mix 3 and other star mobile phones, OPPO, vivo and other domestic mobile phone manufacturers. Both face the risk of being sued.
Xiaomi encountered patent litigation in the United States
The so-called red is not much. After the listing of Xiaomi, it immediately encountered a lawsuit in the United States.
Xiaomi has not received the subpoena
DARELTECH's indictment alleges that Xiaomi's sales include, but are not limited to, the millet-mounted selfie stick, which has infringements, its tripod design, coupler settings, Bluetooth module, etc., infringing DARELTECH's four US patents.
According to the US patent website, the four patent inventors are China's Jinrong Yang (Yang Jinrong) and the United States' Maaloaf Ramzi Khalil. The raging DARELTECH was registered in Delaware, USA, and recently purchased a patent for a selfie stick from two inventors.
The United States is one of the countries with the most patent disputes in the world, and this has created many companies that have no physical business and survived by actively launching patent infringement lawsuits. Such companies are being scorned by some as “patent” and international It is referred to as “non-implementation unit” (NPE) or “patent rights protection unit” (PAE).
DARELTECH's lawsuit against Xiaomi is no different from NPE.
It is worth noting that the homepage of Pierce Bainbridge Beck Price&Hecht LLP, the law firm responsible for DARELTECH, showed its managing partner John M. Pierce and the lawyer who represented the case David L. Hecht was an attorney for Quinn Emanuel Urquhart & Sullivan, who was involved in the patent war of Apple and Samsung.
The case was filed on September 24th in the Federal Court of the Southern District of New York. According to industry insiders, the US litigation process is different from that in China. The domestic court of lawsuit will review it before deciding whether to accept it, while the United States “will not refuse to come”, as long as the lawsuit is filed, the court will accept it.
Mai Shihong, a lawyer from Shanghai Hongwei Intellectual Property Agency Co., Ltd. and Junlun Law Firm, said that they are currently in contact with Xiaomi's self-portrait foundry, and Xiaomi has not received a subpoena.
Whether the subject of litigation has become a focus
Not only in the United States, there have been many patent disputes about self-timer in China.
Yuan Desheng Plastic Electronics (Shenzhen) Co., Ltd. holds the patent of the domestic core self-timer. In this regard, Yuan Desheng initiated a large number of patent litigations nationwide, and only initiated 41 lawsuits in September this year. The respondents were mostly third-party sellers such as supermarkets and mobile phone stores, and Yuan Desheng was mostly compensated. Xiaomi self-timer factory is Yuan Desheng.
Unlike the domestic selfie-related lawsuits, in the DARELTECH indictment, the goods mentioned are also from unofficial channels such as third-party sellers, but DARELTECH is suing the manufacturer Xiaomi. Or based on the objection of the litigation object, the relevant person in charge of Xiaomi told the IT Times that the lawsuit was not commented.
Liu Chunquan, a partner of Duan and Duan Law Firm, said that Xiaomi may dismiss the plaintiff’s claim in the Motions stage without the court’s jurisdiction.
“ The evidence is the seller, the main object of the lawsuit is Xiaomi. & rdquo; Mai Shihong said that the subject of the lawsuit was wrong, Xiaomi has reason to ask the court to reject the application.
Xiaomi's products sold in the US market are mainly based on smart hardware peripheral products. Xiaomi's official US website is only for window display and has not been sold. All product purchase links are from Amazon.com, and the self-timer is not in the US market. The seller of the Xiaomi selfie stick mentioned in the indictment is only a third-party seller.
In this regard, DARELTECH believes that Xiaomi has induced infringement, so the main claim they made to the court is that Xiaomi stopped the infringement and claimed three times the patent fee. Mai Shihong responded: "Millet did not authorize this manufacturer, nor is it an agent, there is no induction problem. The prosecution process is flawed. ”
“Things may not be that simple. Liu Chunquan said that in the related patent disputes he had contacted, there were often merchants from the United States who took the initiative to purchase related products and deliberately created litigation connection points, and then turned to the US courts for litigation. “Chinese enterprises are not aware of this aspect.” There have been many such lessons in the past. The development of cross-border e-commerce now facilitates this behavior. & rdquo; An unnamed lawyer also expressed the same point of view, the prosecutor is experienced in patent infringement cases, and is less likely to commit such low-level mistakes.
Lawyer: The prosecution patent may be invalid
In China, a lot of patents on the selfie stick are in the source of Desheng. “We questioned Yang Jinrong’s patent application before the “first technology”, so he is likely to be suspected of copying Yuan Desheng and other potential patent holders, we are using this as the direction of investigation. & rdquo; Mai Shihong said. Up to now, Yuan Desheng has been requested to invalidate more than 20 times in China, and none of them have been successful.
It cannot be ignored that some of DARELTECH's four patents are from Yang Jinrong. Yang Jinrong's patent application date is 2012, significantly earlier than Yuan Desheng. However, Mai Shihong believes that this is not enough to prove that DARELTECH's patent is valid.
However, the industry is not optimistic about this attitude. It may not be so simple to ask Yang Jinrong to invalidate the patent.
According to the relevant US litigation procedures, it takes a long period of three years from filing a lawsuit to final judgment. The US NPE company is a risk agent. The cost of the lawyer is high and will not last long. Most of the patent litigation will be settled in half. . “We are still in the preliminary study of the case. If the application for dismissal is invalid, the possibility of reconciliation in the Xiaomi case is relatively large. There are two possibilities for general settlement. In addition to the price, cross-authorization will be carried out. The Xiaomi case is likely to combine the two. & rdquo; Mai Shihong said.
However, the above-mentioned lawyers interviewed believe that from the business point of view, Xiaomi's self-timer is marginal business, which brings relatively limited income. Even if the lawsuit is lost, a patent fee will be incurred, which will have a less substantial impact on Xiaomi.
Next litigation target: slide full screen
For domestic manufacturers, the patent crisis of the selfie stick is only the beginning. This year's popular “sliding full screen” is likely to become the second target of oono. Oono creative director Yang Jinrong is one of the protagonists of the above self-portrait patent litigation.
Domestic mobile phone manufacturers refuse IP cooperation
On October 10, 2017, the oono organization and Shanghai-based Mijie Intelligent Electronics Co., Ltd. officially signed the contract, and the latter implemented the “Shanghai Full Screen” IP strategy in China. At the press conference, Yang Jinrong, creative director of oono, said that the solution called “System and Method for Realizing Full Screen Display on Handheld Terminals” has applied for US patents and PCT patents. Agents will promote this solution to domestic mobile phone manufacturers and get rewards through IP authorization.
The model machine that the IT Times reporter saw at the scene was a “sliding version”, a full-screen mobile phone with a complete screen on the front. Gently sliding down the screen, it would jump out about 1 cm long. The body is embedded with sensors such as a camera, buttons, and an earpiece. At that time, iPhone X just released, "Liu Haiping" is just the right time.
One year later, in October 2018, various domestic mobile phones have “scarted face”, and the released and upcoming glory high-end flagship models Magic 2, Xiaomi MIX 3, and Lenovo Z5 Pro are all similar slides. Screen design.
“No one of these friends is working with us. On October 9th, Wang Tao, the smart CEO of Rice Circle, told the IT Times reporter that after the release of the IP strategy last year, they had contact with almost all major mobile phone manufacturers in China through the supply chain manufacturers, and the response was basically “all”. This idea is good, but it is nothing more than that, no company has substantial contact with them.
“Without a commercial response, we are very sorry about this, but we need to remind our friends that similar products have serious infringement risks in the future. ”Wang Tao said similar products, including almost all of the current "real full-screen mobile phone", in addition to the latest several slide-type mobile phones, the use of hidden lift camera vivo NEX and dual-track periscope OPPO Find X is also alleged to be infringing.
Will initiate litigation after the year
The hidden danger of infringement lies in the above solution, which is called “System and Method for Realizing Full Screen Display on Handheld Terminals”. According to the information provided by Wang Tao to reporters, this program is in September 2017. On the 19th, he applied for US patents and PCT patents and is currently in substantive examination.
Wang Tao told reporters that it is expected that the patent application will be reviewed and the official patent number will be obtained before and after the Spring Festival. “There is no possibility of not getting it”.
But in China, similar patents have been applied for by domestic mobile phone manufacturers. Wang Tao is quite vocal. On October 10, 2017, the “Shanghai Full Screen” IP strategy conference was held. On October 13, OPPO applied for similar patents in China.
The "IT Times" reporter found on China and the multi-national patent examination information inquiry website (SIPO) that on October 13, OPPO applied for a utility model invention, the application content is "a mobile terminal, including the first body and The second body … … the second body is slidably stacked on the first body … … this mobile terminal can achieve a higher screen ratio and improve the user experience. ”
On May 25, 2018, the application was formally adopted.
In addition to OPPO, Xiaomi also applied for a design patent for a sliding mobile phone on February 1 this year. The camera and the earpiece are on the second sliding cover. On September 28th, the application was patented.
The reason why Wang Tao believes that domestic similar patents are suspected of infringement is because of the previous oono's system and method for realizing full-screen display on handheld terminals. The patent has already applied for the same patent application through the PCT. [Locked by PCT It is stipulated that a patent international application filed in a patent office in one language is valid in every PCT Member State designated by the applicant in its application), which means that if 30 years after the first application of the patent application by oono Applications for entry into the PCT member within a month will be granted a patent upon review by the country's patent office. China officially became a member of the PCT on January 1, 1994.
Once the patent of oono is approved in the US, the domestic patents of OPPO and Xiaomi must be invalid.
Wang Tao explained that the original design idea of the oono patent is to realize a full-view screen without visual obstacles. Other functional originals realize this kind of “innovation of ideas” through various types of methods such as slides, and this is oono and The US Patent Office has been approved by nearly 300 pages of inter-review interactive documents. “Most domestic manufacturers pay attention to technology-based patents. The rights to innovative patents are not very important. I feel that I can do this if I have this idea. However, in foreign countries, the protection of such patents is also complete. & rdquo; Patent documents also record all possible design artwork one by one, "substantially covers all the current domestic mobile phone manufacturers. ”
Does oono file a lawsuit against domestic mobile phone manufacturers? “ Do not rule out this possibility. & rdquo; Wang Tao said.
According to the PCT, patent applicants can only apply for patents through the PCT and cannot obtain patents directly through the PCT. In order to obtain a patent for a country, the patent applicant must also perform the formalities of entering the country. That is to say, if oono wants to enter the patent in China and complains that Xiaomi and OPPO have failed the patent, the corresponding legal process still needs to be taken. The time required and the cost of litigation are unknown.
Therefore, an industry insider analyzed to reporters that it is likely that oono will copy the routine of the self-timer lawsuit and file a lawsuit in the United States to create obstacles for domestic mobile phones to enter the US market, thus gaining a negotiated opportunity.
Therefore, the lawsuit of the selfie stick may be just a pathfinder, “all screens are the focus. ”
Chinese companies do not need to avoid foreign patent litigation
Judging from the interviews of many patent attorneys, the patent litigation encountered by Chinese enterprises will only increase in the future and will not decrease. The industry consensus is that patent litigation has become a normal business game of enterprises.
Domestic patent development began in 2007, with an annual number of applications exceeding one million. Authorized in 2010, the relevant patent litigation began in 2011, “self-playing people”. Beginning in 2018, China entered the third stage. Huawei and other Chinese companies also became prosecutors, proactively suing foreign companies, and domestic litigation finance is also developing. In the next five years, the age of the rights will come, and there must be a large number of patent lawsuits.
Lawyer Ma Shihong and other lawyers said that in the past, Chinese companies encountered patent litigations from companies such as NPE, often because of a misunderstanding of the US litigation process, "self-confessed bad luck" and slammed the "rights". However, in fact, to determine the infringement, it is necessary to meet the three preconditions of the territoriality, the scope of rights, and the validity period. Many similar patent litigations are actually not infringed. Hiring a lawyer to respond actively, it is likely that the economic cost required is much lower than the premium.
The change that can be seen is that more domestic large enterprises have straightened their waists and actively responded to international patent litigation. Domestic lawyers on behalf of Chinese companies have also gone out to fight lawsuits to defend against foreign brand attacks. As more patents are in the hands of the Chinese, and so on, even a large number of Chinese companies will, like Huawei, take the initiative to initiate litigation and safeguard their legitimate rights and interests.