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Pharmaceutical enterprises should pay attention to drug design patents

the intellectual property dispute over design between general motors and Chery in China, Lebanon, Malaysia and other places has attracted the attention of the industry to product design patents. In fact, China, MP3 players, toys, bamboo products, cosmetics, food, milk tablets, Baijiu, pharmaceutical and other enterprises have been involved in design patent disputes. The amount of claims in some disputes is as high as tens of millions of yuan. Some disputes caused thousands of enterprises to stop production or close down before the patent was declared invalid. How to learn from the experience of domestic and foreign counterparts and do a good job in the design patent protection of pharmaceutical products is also a problem that Chinese pharmaceutical enterprises need to pay attention to

■ apply for design patents from multiple angles

according to whether there is substantive examination, the design patent systems of various countries are mainly divided into two kinds, and China and the United States are typical representatives of these two systems respectively. Our country implements the formal examination system. As long as the format of the application document meets the requirements, it will generally be authorized. In the patent invalidation litigation, there is a great debate in the judicial circles of our country about whether the design patent has creative requirements, and the mainstream opinion holds a negative attitude. The United States adopts the complete examination system. In addition to examining the writing format, the examiner also examines the practicality, novelty and non obviousness of the design patent application. In addition, they also need to examine whether the design is mainly decorative or functional. If it is the latter, it will be rejected. In terms of non obviousness, that is, creative examination, the examiner imagined himself as an "ordinary designer", and then judged the creative height of the object under examination. If the height is too low, it will be rejected

the characteristics of the patent system directly determine the characteristics and number of design patents. There are a large number of pending design patents for appearance applied by Chinese pharmaceutical enterprises in China. However, more than 90% of the design patents of the top 50 domestic pharmaceutical companies belong to the patents of packaging boxes and bags. Chinese local pharmaceutical enterprises have hardly deployed any design patents to protect the drugs themselves, and there are few patents related to the design of other products, medical devices, drug delivery systems and so on. The design patents applied by foreign enterprises in the United States are more widely distributed. Some companies have a large number of drug design patents, and less involve packaging boxes and bags. Take Pfizer of the United States as an example, which has d499023 patent to protect liquid measurement containers; D311867 and d308428 patents protecting beauty products; No. d450153, d432714, d431093 and d430703 of patented drug devices; And dozens of patents specially protecting tablets, such as d437407, d434136, d434135, d433750, d433501, d433500, d433499, d433122, d433121, d432641, d415272, d414552, d414551, d414259, etc. Roche and Lilly "Consumers also hope to use natural materials to make packaging materials, and there are many appearance patents related to devices and containers. For example, Roche pharmaceutical's d441089, d435300 patents protect biosensors; d305003, d305002, d305001 patents protect chemical analyzers; Lilly's d399313, d351466, d351465 patents protect injection devices. It is worth noting that some western enterprises and individuals independently build the first injection device in China according to the United States' medical technology The developed domestic large aircraft C919 successfully applied for some design patents in accordance with the specifications or standards during its test flight in Shanghai in May, which has generated greater market control in the United States

in terms of foreign-related patent deployment, Chinese enterprises have not yet gone abroad, and there is no precedent in China's medical industry to deploy design patents following national and industrial standards. On the contrary, foreign pharmaceutical enterprises have obtained hundreds of design patents in China. Among them, Johnson & Johnson pharmaceutical company and Glaxo company have more patents on packaging bags and boxes. Other companies rarely involve such appearance patents. Pfizer and Merck have five patents to protect the tablets themselves. Other foreign pharmaceutical companies also have some patent protected medicine bottles, sugar tablets, drug delivery systems, etc. How to deploy design patents in various technical fields to foreign markets is an important task for Chinese pharmaceutical enterprises in the future

■ learn to use a variety of weapons

the differences between the Chinese and American design patent system and the deployment of design patents between Chinese and foreign pharmaceutical enterprises in China and the United States have two enlightenments for us:

first, China has no substantive examination of design patent applications. Theoretically, many authorized patents lack stability, but in judicial practice, it is difficult for the parties to collect and fix the necessary evidence materials, so it is very difficult to declare the patent invalid. For example, in the judicial practice of our country, the proportion of design patents recognized as invalid is about 55%, which is far lower than 70% of the United States. Therefore, enterprises cannot allow competitors to deploy appearance patents, let alone hope to fight patent invalidation litigation. When deploying appearance patents in China, enterprises should cherish all opportunities and not waste time in searching and analyzing patentability. Although the design patents in the United States adopt a comprehensive examination system, the tensile properties of plastic and rubber under examination are one of the most important and basic mechanical properties. The amount is low, and a large number of patents lacking stability will also be easily authorized. Therefore, Chinese enterprises should not rely too much on patent search and analysis reports when deploying appearance patents in the United States

second, Chinese pharmaceutical enterprises should not only pay attention to the patents of packaging boxes and bags, but also deploy appearance patents in various fields such as tablets, bottles, drug delivery systems, medical devices and so on. Competitors or counterfeit enterprises have little difficulty in avoiding infringement of packaging box and packaging bag patents, and there is no penalty for patent infringement, and infringers are often unscrupulous. The words, colors, patterns and other elements in the packaging boxes and bags and their combinations can be registered trademarks and copyrights. Trademark and copyright infringement has criminal legal relief channels, which has a great deterrent to infringers. In addition, the packaging and decoration of well-known commodities can also be protected by the anti unfair competition law. Industrial and commercial authorities have strong law enforcement resources in punishing and confiscating counterfeit products in accordance with the law. The administrative law enforcement and judicial protection of design patents are often low. Therefore, Chinese pharmaceutical enterprises should focus on other intellectual property laws in protecting product packaging and decoration, and should not rely too much on patent law

source: China Medical News

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