Case playback:
In 2002 November, the State Drug Administration issued A capsule of national drug standards, production units for B company, since December 1, 2002 onwards, to December 1, 2004 only. The sending unit for each province, autonomous region, or municipality directly under the central government and drug administration; CC unit for the provinces, autonomous regions, municipalities directly under the central government, Institute for drug control, the control of biological products of Chinese medicine, Chinese Pharmacopoeia Commission, the State Drug Administration Center, national drug protection review committee, the relevant units of production. The standards included in the publication "national Chinese medicine standard compilation". The assembly part is the time for the November 20, 2002, cover marked "two hundred two years". In December 2, 2002, B company to the State Intellectual Property Office of A capsule proposed an application for a patent for invention, and invention patent in 2004 November. In 2009 July, C company to obtain D particles drug registration approval, production standards and A capsule similar. In 2009 August, B company to the infringement of the patent right by the requirements of C company, apply for the cancellation of D particles, and stop production. C company thinks, D particles using the A capsule patent application existing technology recently, do not infringe upon the patent right of B company, can continue to produce and sell D particles. B is about C company to court.
Intensive analysis:
Technology, means and skills operation method and based on the practical experience and the principles of Natural Science in the development of manufacturing a product. According to the different application object, technology can be divided into product and process technology; according to different functions, technology can be divided into the production technology and management technology; according to the different forms, technology can be divided into software technology and hardware technology; in the open degree, technology can be divided into open, half open and secret technology.
The advent of knowledge economy era, the technology in enterprise management in a more important position, right, technology strategy has become the key to winning business proper advantage. A successful technology strategy, may enable entrepreneurs to seize business opportunities, and maintain long-term competitive advantage; conversely, if the strategy fails, it may weaken the technical basis for enterprise, and even lead to loss of technical advantage away, just miss the person or opportunity and entrepreneurial opportunities. Therefore, in the integration of technology, technology must be adopted to audit, technology planning and technology acquisition and other steps in detail, careful decision-making, in order to ensure the correct, reasonable and legitimate technology strategy.
In this case, C company through access to "national Chinese medicine standard compilation" easily obtained A capsule formulation, slightly modified produced D particles, seemingly is a shortcut to venture to obtain technology, but I do not know is you must. A capsules the national drug standards promulgated time and trial time while filing date in December 2, 2002 before the patent, but the standards specified in the main supply and a copy of a unit are specific subject, so not on the standard as known to the public technology. "A capsule" included in the national drug standards "national Chinese medicine standard compilation" belongs to the publication, can be identified in the public knowledge state. Although the assembly part is the time for November 20, 2002, but the assembly did not clearly marked specific release date. According to mark the assembly cover "two hundred two years", it shall be presumed that the compilation of the open time of 2002 year on the last day of December 31, 2002, the day after the patent application on December 2, 2002. Therefore, included the compilation of the "A capsule" the national drug standards do not belong to the existing technical regulations of the patent law. B company is the patent right for invention of human A capsule valid, C company needs to carry out its patent, must have B permission, and pay the corresponding fees; otherwise, C, for production or business purposes, using, offering for sale, manufacture sales, imported A capsule patent product, its initial investment and entrepreneurial opportunities all one's efforts wasted.
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