知识产权管理关键洞见——专访Martin Bader教授博士——黑色星期五商标争议——特朗普吉他对决Gibson Les Paul——知识产权星期五——第158期

你好。我是马丁·巴德尔教授博士，来自德国英戈尔施塔特应用技术大学，同时也是加拿大蒙特利尔麦吉尔大学的教授。您现在收听的是《IP星期五》节目。

Hi. I'm professor doctor Martin Bader from Technical University of Applied Sciences in English, Germany, and a professor at McGill University in Montreal in Canada. And you are listening to IP Fridays.

大家好，欢迎收听本期《IP星期五》。我们是肯·苏珊娜和罗尔夫·克莱森，这是一档专注于知识产权的播客节目。无论您来自企业法务部门还是私人律所，是行业新人还是专家，我们都将帮助您及时了解商标、专利、外观设计和版权领域的最新动态，探索实用工具等丰富内容。

Hello, and welcome to this episode of IP Fridays. Our names are Ken Suzanne and Rolf Clayson, and this is the podcast dedicated to intellectual property. It does not matter where you are from, in house or private practice, novice or expert. We will help you stay up to date with current topics in the fields of trademarks, patents, design and copyright, discover useful tools, and much more.

我和联合主持人肯·苏珊娜欢迎您收听《IP星期五》第158期。今天的访谈嘉宾是马丁·巴德尔教授，在我看来他是知识产权管理尤其是专利管理领域的权威专家。他为全球顶级专利申请机构提供咨询服务，今天我有机会向他请教。不过在进入访谈前，先分享一则新闻：多年来德国零售商在使用'黑色星期五'促销时面临法律不确定性，因为该词曾是注册商标。

My cohost, Ken Suzanne, and I are welcoming you to episode 158 of IP Fridays. Today's interview guest is Professor Martin Bader, and in my view, he is the expert when it comes to IP management and, in particular, patent management. He is consulting some of the top patent filers in the world and I can pick his brain today. But before we jump into the interview, I have news for you. For years, German retailers faced legal uncertainties when using the term Black Friday in promotions as it was a registered trademark.

未经授权使用可能收到高额律师函。但经过多次法律诉讼，德国联邦最高法院（BGEH）最终裁定'黑色星期五'不再受商标法保护。该判决允许零售商在营销中自由使用该术语而无需担心法律后果。2024年11月25日起，德国专利商标局将作为专利和实用新型的存管机构加入WIPO数字接入服务（DAS），申请人可通过WIPO DAS电子化申请优先权文件，实现与全球知识产权机构的安全高效共享。

Unauthorized use risked costly cease and desist letters. However, after multiple legal challenges, the Federal Court of Justice in Germany, BGEH, confirmed that Black Friday is no longer protected as a trademark. This decision allows retailers to freely use the term in their marketing without fear of legal repercussions. On 11/25/2024, the German Patent and Trademark Office began participating in YPOS Digital Access Service as a depositing office for patents and utility models. This allows applicants to request priority documents electronically through WIPO DAS, enabling secure and efficient sharing of these documents with participating IP offices worldwide.

申请人可免费使用A9164表格申请电子优先权文件，或付费获取纸质副本。处理时德国专利商标局会提供保密检索码用于DAS系统调取文件。2024年10月31日，欧盟委员会对梯瓦制药处以4.626亿欧元罚款，因其滥用市场支配地位延缓多发性硬化症药物Copaxone的仿制药竞争。委员会认定梯瓦通过分案专利申请延长Copaxone独占期，并系统性散布关于醋酸格拉替雷仿制药的误导信息阻碍其上市。统一专利法院杜塞尔多夫分院裁定Aker AB公司的Carbonator Pro产品侵犯SodaStream关于加压气体液体碳酸化设备的欧洲专利。

Applicants can request electronic priority documents for free using Form A9164 or opt for paper copies at a fee. When processing, the DPMR provides a confidential access code for retrieval of the documents via Das. On 10/31/2024, the European Commission fined Teva Pharmaceuticals for €462,600,000 for abusing its dominant market position to delay competition against its multiple sclerosis drug Copaxone. The Commission determined that Teva misused the patent system by filing multiple divisional patents to extend Copaxone's exclusivity and engaged in a systematic campaign to spread misleading information about a competing Glatiramer acetate product, thereby hindering its market entry. The unified patent courts Dusseldorf local division that the Carbonator Pro of Aker AB infringed soda stream industry's European patent which pertains to a device for carbonating liquids with pressurized gas.

法院对专利权利要求中'容器'一词作出广义解释，认定ARC公司的设计虽与SodaStream图示存在差异仍构成侵权。ARC提出的吉列抗辩（主张其产品仅体现现有技术故不构成侵权）被驳回，因其未同时提起专利无效反诉。法院最终在七个UPC成员国对ARC产品颁布永久禁令，该判决强化了权利要求解释的精确性要求，也明确了在纯侵权诉讼中吉列抗辩的局限性。吉布森公司已向特朗普吉他制造商16Creative发出律师函，指控其电吉他型号设计侵犯吉布森Les Paul琴体外观专利。

The court interpreted the term flask in the patent claim broadly, encompassing ARC's design despite differences from soda screams illustrations. ARC's defense invoking the Gillette defense, asserting their product mirrored prior art and thus couldn't infringe a valid patent, was rejected as Arc didn't file a counterclaim challenging the patent's validity. Consequently, the court granted SodaStream a permanent injunction against Arc's product in seven UPC member states, reinforcing the importance of precise claim interpretation and the limitation of the Gillette defense in infringement only proceedings. Gibson has issued a cease and desist letter to 16Creative, the company behind the newly launched Trump guitars, alleging that the design of the electric models infringes upon Gibson's protected Les Paul body shape. The Trump endorsed guitars, marketed as the only guitar officially endorsed by President Donald J.

这些获特朗普背书的吉他标榜'唯一获唐纳德·J·特朗普总统官方认可'，印有'让美国再次伟大'等标语，签名版售价高达11,500美元。以知识产权保护闻名的吉布森公司此前曾多次采取类似法律行动维护其标志性设计。现在让我们开始对马丁·巴德尔教授的专访。

Trump, feature designs with slogans like Make America Great Again and are priced up to $11,500 for autographed versions. Gibson, known for vigorously protecting its intellectual property, has previously taken similar legal actions against other manufacturers to safeguard its iconic designs. And now let's jump into the interview with Professor Martin Bader.

今天的访谈嘉宾是马丁·巴德尔教授博士。他是德国因戈尔施塔特工业大学技术与管理和创业学教授，加拿大魁北克麦吉尔大学兼职教授。他是瑞士赞康BGW知识产权公司创始人，同时担任瑞士BGW管理咨询集团监事会主席。在此之前，他曾在MTU、ABB、西门子和英飞凌等企业担任多个行业职务，曾任副总裁兼首席IT顾问。

Today's interview guest is Professor Doctor. Martin Bader. He's Professor of Technology and Management and Entrepreneurship at the Technical University in Ingolstadt in Germany, adjunct professor at McGill University in Quebec in Canada. He is founder of BGW IP in Zankang in Switzerland and also chairman of the supervisory board of BGW management advisory group in Switzerland. And before that, he had several industry positions with MTU, ABB, Siemens, and Infineon, where he was vice president and chief IT council.

最重要的是，他是IT管理领域的专家。非常感谢您参加本次节目。

And and most importantly, he's an expert in IT management. Thank you very much for being on the show.

是的，感谢您的邀请。

Yeah. Thank you for your invitation.

谢谢。在我看来，您至少是我们专利管理领域的专家，还是专利管理标准教材的作者。第五版刚刚出版。二十多年来，您一直将咨询与研究洞见提炼为实用建议，并为该领域的众多企业提供咨询服务。

Yeah. Thank you. You are the expert, in my view, at least, for our patent management, and you are the author of the standard book on patent management. The fifth edition was just published. For over twenty years, you have been distilling our your advisory and research insights into practical takeaways, and you are consulting many companies in this field.

对于中等规模的技术驱动型企业——比如拥有500名员工的公司——与大型企业相比，它们面临的主要挑战有哪些？

What are the top challenges for medium sized technology driven companies, let's say, with 500 employees compared to the top challenges for large corporations?

感谢您的介绍和第一个问题。当今中小型企业面临哪些挑战？当然，许多企业都有自己的看法，但从外部普遍视角和本次讨论出发，我认为一个关键挑战就是创新本身带来的挑战。

Yeah. Thank you for the introduction and the first question. Yeah. What are the challenges for SMEs, medium sized companies today? Of course, many of them have their own opinion, but from a, let's say, general outside view and for this discussion here, I think one challenge is one key challenge is the innovation challenge as such.

特别是欧洲中小企业正面临来自多方面的压力，其中之一就是创新压力。其他企业变得几乎同样优秀，客户不再愿意为顶级品质支付最高价格，因此这些企业在保持创新性方面面临挑战。在这个领域，我们经历了技术变革，比如大约十年前所谓的数字化转型——许多企业无论主动还是被动都不得不面对这种转型。

So especially the European SMEs have become under pressure from various sides, and one is in innovation. Other companies that become almost similar is good, customers that don't want to pay top top prices for top quality anymore, and so those companies that are are challenged by staying, you know, you know, innovative. And in that field, we had, like, this technology changes. One one was a couple of years ago, almost a decade ago, was the the so called digitalization. So the the transformation that many of those companies had to face either willingly or by sort of by pressure from the outside.

当然，这包括这对他们的价值链、价值创造链意味着什么，以及对IT工作又意味着什么？举个例子，如果一家机械工程公司的价值越来越通过服务而非静态机器本身来体现。当然，打印机也涉及知识产权方面。机器本身会发生什么变化？与整体服务保护策略相比，它们处于劣势——客户可能更看重服务价值。

And that included, of course, what are the what does that mean for their value chain, for value creation chain, and what would that mean also for the IT work? So if to make an example, if a a mechanical engineering company's value would be more and more perceived by services and not so much by the the static machine as such anymore. Of course, the printer comes also on the IP side. What does it happen on the machine as such? They lose compared to, let's say, a protection strategy on the whole services that customers might value more.

因此这是个重大转变。最近我们在商业模式上有了新突破——商业模式正在改变。而最近又出现了AI热潮，这当然不仅是噱头，更是重大机遇，但对那些不熟悉如何将这项技术融入价值链的企业来说也是挑战。我认为这是项巨大优势。

So this this was a big change. And now recently, we had a push on the business models. The business models were changing. And now lastly, we had all this AI hype, which, of course, not only a hype, but also serious opportunity, but also a challenge for those who are maybe not so familiar with implementing this technology into their value chain. So I think that's that's a big strength.

对许多公司而言，业务变得更加国际化、全球化，来自中国、印度等新兴国家的竞争加剧正在改变格局。与瑞士的大型企业相比，成本压力持续上升——这当然也与汇率波动有关。

We we for many companies, so this is got much more international, more global, with more of the competition coming in from from emerging countries like to then just to fuel, like China or India. And and this was changing the field. And compared to the to the large ones, those are in Switzerland. The the the cost pressure has rather been increasing. This is, of course, also based in the currency exchange rate.

若要补偿这种压力，就会产生额外负担。这就像围绕渠道的种种问题，但也会促使我们思考：该如何持续发展？在哪里发展？哪些该自主开发？哪些不该？

But if you were to compensate this, it it was an additional pressure. So this was, like, the the the channel stuff around it, but that would also lead to, okay, how do we keep developing? Where do we develop? What we do for our own? What's not?

我们应该外包什么？外包到哪里？这也会挑战知识产权角度——我们得思考如何既能在这方面做到顶尖，又能同时保持高效和成效。

What do we outsource, where do we outsource to, and that would also challenge, let's say, the the IP angle where we would think, okay, how can we how can we be, yeah, very good there on the one end and still efficient sort of efficient and effective at the same time.

那么你怎么看？收集创意或新发明，在小型企业还是大型集团更难？你怎么认为？

So what do you think? Like, collecting the ideas or collecting new inventions? Is it more difficult in smaller companies or more difficult in large corporations? What do you think?

我有个不错的案例来自某跨国集团——他们高管曾说：'当你知道发明者在哪时，根本意识不到自己多幸运。'当然，当发明者提交发明文件时你可能会知道。但最困难的是那些你不知道的发明者和发明——他们可能自己都没意识到创造了新事物。听起来可能有点荒谬，但这些情况往往出现在数字化转型等新兴领域——价值创造突然转向软件开发，而传统软件开发者未必受过相关训练，意识不到自己对知识产权领域的贡献。

I have a nice call maybe on that from a from a large corporation international. Actually, can globally call corporation where where one of their executives said, you don't know how lucky you are if you know where your inventors are. And, of course, you might know your inventors when they send you your their invention file in in in sort of the and and the note. But the the most difficult part of are those inventions and inventors where you don't know that they are that they are inventors or where the inventors didn't go know that they are inventors and or has invented something new. And typically, these areas it might sound a bit absurd right now, but typically, these areas are in in in in fields where new developments are taking place where like in like in this transition, this digital transition, all of a sudden, the part of the value creation was shifted to was was sort of lying in the software development, and classical software developers were not necessarily trained to think like that they would contribute to to the IP field.

也许他们甚至反对自然问题。商业模式也是如此。因此价值创造可能会转向服务和营销部门。我们的业务发展部门从未想过他们可以成为知识产权战略的一部分，并在其中发挥重要作用。而在这些领域，首先可能更难让管理层普遍理解他们如何能建立起一个积极的地位，其次这种理解从何而来。

Maybe they were even against the natural issues. Same with business models. So the the value creation might shift into service and marketing departments. Our business development departments, which have never been thinking about that they would could be part of an IP strategy where they would contribute significantly to. And in in these areas, it might be more difficult to get, first of all, the general understanding in the in the management, how they how they can build up a good active position, and second, where this comes from.

所以如果你只是收集传统研究或开发部门的发明披露（这仍然是好事），但你可能错过正在创造和投资的新价值领域，某种程度上忽略了知识产权。

So if you just collect the invention disclosures from traditional research or development departments, which is still good to do, but you might missing out on the new sort of on the new value areas that you're creating, that you're investing in, and sort of leaving out the the IP.

是的。很有趣。非常感谢...谢谢我能汲取你二十多年的经验和智慧，当你二十多年前开始写这本关于知识产权管理和专利管理的书时。二十年前的挑战与当今的挑战大不相同。

Yeah. Interesting. Thank you so much for for yeah. Thank you that I was able to pick your brain and your experience for for over twenty years when you started this book over twenty years ago about IP management and pet management. And the challenges twenty years ago were quite different from today's challenges.

在你看来，哪些主题保持不变，基本上与二十年前相同的挑战？哪些主题变化最大？你怎么看？

What are the topics in your opinion that stayed the same that are the same challenges basically today than compared to twenty years ago, and what topics changed the most? What do you think?

是的，谢谢。也许我应该快速提一下你提到的那本书——《专利管理》最新德文版的成书过程。它实际上源自我们在圣加仑大学商学院做的两个应用研究项目。

Yes. Thank you. Yeah. Maybe I should quickly mention how this book that you mentioned, the book parent management, the recent version was in German was developed. It was actually assigned for two product from our applied research projects that we did at Saint Gallen University at the business school here.

我们曾与各类智库密切合作，一端是国际知名大企业，另一端是德语区许多著名的中型家族/非家族企业——我们称之为世界标杆企业。我们与他们讨论现状：他们如何实践知识产权、采用何种策略、如何制定这些策略、以及如何实施这些策略。比如会使用什么流程和组织架构来实施策略，公司内部会培养和支持何种文化，以及哪些工作会内部处理、哪些会外包。

We were we were working closely together in various think tanks with international established and large corporations on the one end and also many of those in in especially the German speaking area, well known mid sized family or non family businesses that that that per how we call it world benchmark players. And and with them, we discussed their status and how they were practicing IP, how they were what kind of strategies they were applying, how they were creating those strategies, and also how they were implementing those strategies. For example, what kind of processes they would use and what kind of organization they would use to implement their strategies. Also, what type of culture they would have and support in their companies. And also, for example, what would you do in house and what what would you outsource in front of me.

我认为这本书本质上是那个阶段案例研究和洞见的总结汇编。我们保留了那些仍被验证认可的内容，更新了那些融入新见解的案例并得以出版。这本书的结构基于管理模型：战略层、概念层和实施层。这种基本框架变化不大。我认为最大的变化是——尤其对中小企业而言——许多企业已更熟悉运用知识产权，特别是基础功能如专利程序。

And I think from this from and and the book was basically a summary and a collection of case studies and insights from that phase. And as we continue to sort of kept those elements that were still confirmed and acknowledged, and we changed and adapted and renewed those cases where we put new insights into the earnings and we're able to to publish them. So in the and I think one of so the the structure is based on the management model where we say we have a strategy level, where we say we have a conceptual level, and where we have, like, an implementation level. And this basic understanding didn't change too much. What changed, I think, a lot is that, especially for SMEs, many has become more familiar with working with IPs, especially with the the basic functions like the the program.

要知道，你们可以拥有发明创造。你们需要思考如何保护这些发明，或许通过专利，或是利用设计权或商标。我们甚至会谈及商业机密这些内容。这些都变得越来越常见。但我认为真正变化的是——这也可能已经是一个提示——你们中小企业可以从中获得的启示。

You you know, you you can have inventions. You you have an idea how you can protect those inventions, maybe with a patent or how to that you can use design rights or trademarks. We even talk about trade secrets, those things. That is becoming more and more familiar. But what what changes, I think, that and I think this is also probably already a note on what you what you could sort of as a as a takeaway for the SMEs.

许多开始做这些基础工作并熟悉相关术语的企业可能会说：看，我们现在有了一个核心的专利管理或IT管理职能，由他们来统筹协调公司内部一切事务。这类企业大多没有专门的专利部门，他们非常依赖外部支持，特别是律师事务所、专利律所。我认为变化在于他们设立了这类职能岗位，有了专人负责。

Many of those who have started doing these basic things and and familiar with the terms, they might say, look, we have now this one central patent manager or IT manager function, and they they organize and coordinate everything in the in the company. Many of those don't have a on patent department. They rely a lot on external support, especially law firms, patent and law firms. And I think what what changed is that for for for one aspect that they have this function functions. So they have a dedicated person.

他们有专门的预算等等。但潜在风险是可能没有及时更新对这个职能的需求。比如如果只是申请专利，你会觉得'我能统计专利数量就行'。这看起来不错，因为他们清楚需要在哪些领域获得保护。

They have a dedicated budget and so on. But the sort of the the danger is a little bit that you not updating the the the need for this function. So for example, if you just file a patent, you that comes in, you'll be able okay. I can count the patents. I find it nice to you because they're aware where where we want the protection.

但仅此而已。你可能没有意识到，比如企业的价值创造正在从传统的工程开发部门转向业务开发部门，转向敏捷项目开发中那些工作方式完全不同的人群。你或许过度依赖那个需要协调一切的专人，也可能过度依赖外部建议。如今就连基础专利律所也常谈论他们在IT战略方面的专业认知——这就像委托代理困境，相比本应最清楚的企业管理层：成为第一是战略，保持第一也是战略。当核心价值不再源自传统研发部门时——比如客户为什么购买机器？可能是机器性能，但更可能是现在需要附加服务、SaaS方案等特性，而这些领域已无法用传统机械工程的专利思维来应对。

But that's it. And you you know, you might not realize, like, for example, that your value creation is shifting from the classical engineering development department towards business development departments, towards in in agile project development into people who work and act totally differently, and that you sort of relying too much on the single person that has to coordinate everything, that you rely maybe too much on external advice. Even even basic patent law firms today talk a lot about their expertise or their perceived expertise in in knowing what a what an IT strategy is compared to and this is like an agent principle agent dilemma compared to the company that's and this you know, the management of the company that should know, okay, to to to become number one is maybe a strategy, and to stay number one is a strategy. And if your key values are created not in the traditional r and d department anymore, like like, why does it for example, why does a company why does a client buy a machine? Maybe it's the performance, the technical performance of the machine, but very likely, it's today that you're you have to add a lot of more features like services, like software as a service plans and so on, where you you typically cannot act as in traditional machine engineering, patenting.

所以必须转变思路，需要将相关人员内嵌。在某些项目中，你可能无法再简单地说'只要一个专人负责IT事务'——必须将这类知识至少部分整合到敏捷项目团队中，且工作方式要比传统的商标部门或IT部门惯用的模式灵活得多。这是个重大转变。再看AI驱动的工具，对于中小企业的小团队来说，要跟进所有发展并及时做出投资决策并不容易。

So you have to shift it, and you have to I put people inside. You might not be able in in in the some projects. You cannot so easily say anymore, this is only one person in the centrally that runs behind the IT stuff you need to integrate this knowledge in or at least part of this function in your agile project team, and you might have to be able to work much more agile than the traditional type of the trademark department or traditional IT department might be used to work. So I think this is this is a big shift. And, yeah, to get all this new if look at the the AI powered tools, it's not so easy if you have a small team in an in an an SME company to follow all these developments and to be there in time, to know in time on on what kind of investments or what kind of choices you should take.

因此我认为这是从事知识产权领域的中小企业面临的重大挑战——人力资源和资金都相当有限。第三点要说的是，随着中小企业日益全球化，其面临的风险敞口已发生实质性扩大。如果你现在依赖十年前甚至更早的决策（比如在何处申请专利），可能会发现当时对知识产权组合需求的理解与现今已大不相同。

So I think this is a big challenge for SMEs who are in the field of IP to be also very loose, very low on on resources, including the the persons, sort of the HR, and including the financial. Mhmm. And and third one, to mention the last one, I think, is the the exposure for SMEs that have become more global and international. The exposure has really changed and increased. So if you rely today on decisions, for example, where to file a patent that you took ten or even earlier, ten years ago or even earlier, then you might realize that your understanding of the need for your IT portfolio at that time was different than you needed today.

其次如我们常说的，仅仅申请专利或商标是不够的，还必须完成商标注册，并持续监测和行权以维护权益。

And second, as we always say, it's not enough just to file a patent, you know, or a trademark. You have to register a trademark. You also need to to survey it and to enforce it to to place off now.

是的，这个观点很好。有些人申请专利只是为了数量，他们从不执行这些专利，结果这些专利基本上就毫无价值了，对吧？

Yeah. That's a very good point. Yeah. Some people just file patents just for the numbers, and they never enforce the patents, and then they are basically worthless. Right?

所以如果专利的存在是为了垄断某项技术，但如果你不执行它们，那么你可能就会丧失权利，或者面临各种困难。

So if you if the patents are there for for for having a monopoly on a certain technology and if you don't enforce them, then maybe, yeah, you forfeit your rights or whatever difficulties come along.

你别叫我矛盾修辞。

You don't call me oxymoron.

好的。你是教授，在知识产权管理和专利管理方面做了大量工作，也进行了很多研究。在做这些的过程中，你了解所有这些服务提供商和提供知识产权及专利管理咨询的公司，同时你自己也从事这方面工作。你认为如果一家中型或大型企业想寻求知识产权或专利管理方面的咨询，他们最需要关注什么才能找到好的帮助，也就是好的咨询服务？

Alright. Yeah. You are a professor, and you are working a lot on IP management and patent management and doing a lot of research. And while doing this, you you you know all these service providers and all these companies who who offer consulting in IP management and patent management, and you're doing this yourself as well. What do you think are the the most important if if, let's say, a medium sized company or large corporations also want to to get consulting in the field of IP management or patent management, what do they have to look for for finding a good good help, basically, good consulting?

标准是什么？你怎么看？

What are the criteria? What do you think?

谢谢你的问题。确实，如果我们听一些术语，比如战略，当然有很多学术定义。但通常当你问C级别高管、CEO和CTO这些公司管理层，问他们如何理解战略时，答案可能是类似'目标及实现目标的手段'这样非常简洁易懂的定义。

Yeah. Thank you for the question. Yeah. Indeed, it's if we listen to the term for some, like, strategy, there are, of course, there are a lot of academic definitions about strategy. But, typically, when you ask the c level, the CEOs and CTOs, the c level, the executive level of a company, and ask their understanding what's what they perceive as a strategy, which could be, for example, like, a goal and the means to achieve that goal, something like that, and very, very catchy.

然后当我们和专利律所或知识产权律所交谈时，经常会听到他们说'我们也做战略'。但当你了解他们真正的意思时，就会发现这和前面说的战略不在同一层面，可能更像是艾森豪威尔所说的计划而非真正的战略。我这么说并非贬低——比如在加拿大，我有一些例子（这里用加拿大举例并非对加拿大朋友不敬）。

And then we talk to, let's say, patent law firms or IP law firms, then you will very often also hear that they say, well, we do strategy too. But when you look what they really mean, it wouldn't be the same same level, and it might be much more like a a plan as Eisenhower said than a real strategy. And I don't mean this in a bad way. To make an example in in Canada, I I have some examples from Canada. I don't like Canadian friends are can are are fine with that instead of taking an example from them here.

政府当时正在资助企业制定IT战略之类的计划。他们向企业提供资金，让企业撰写知识产权战略，并配备支持顾问或顾问团队协助企业完成撰写工作。突然间，大约半年内，北美尤其是加拿大的几乎所有IT法律事务所都在服务项目中新增了这项战略顾问服务。当然，企业如果清楚战略的含义，自然能明白这点——既然能自主选择顾问，就应该具备足够能力判断哪些事该自己做，哪些需要寻求建议。

The the government was was funding support for companies to create an IT strategy and and something like that. So they they were they were giving funds to companies that they would write write up an IP strategy and put support consultants or advisers that were supporting those companies in in in in writing it or making up and writing it. And all of a sudden, within about half a year, almost every IT law firm in North America, especially Canada, put on their offerings that they now also would offer at this strategy adviser. Of course, you can do this. If you're a company and you know what you mean with strategy, of course, that that brings you to the point, okay, you choose your advisers, so you should be good enough to know what you should do on your own and for which you need advice.

因此，给企业的第一条建议就是：明确哪些工作应该自主完成。如果还不具备相关能力，或许应该寻求支持来培养这些能力。当能力足够时，就可以将不熟悉或需要外部支持的特定业务外包。学术界经济学中对此有个专业术语，叫做'委托代理困境'。

So so this is, the first advice of the companies to know what should you do on your own. And if you don't have it yet, maybe you should get the support to build up these competencies. And then if you're competent enough, then you can also outsource certain activities or aspects that you don't feel so familiar with or where you say it's just handy and nice to have some external support, but then then you can steal. In in academia, there is in the in economics, there's a nice term for that. It's called the principal agent dilemma.

委托方是企业，代理方则是律师事务所或IT公司等服务型机构。这里存在一个典型矛盾：虽然IT法律事务所的章程要求他们保持中立并服务客户，但作为企业家，他们同时也有扩大业务、提高利润的需求。我们不必深谈这点，但这确实是代理方存在的固有矛盾。

So the principal would be the company, and the agent would be a service firm, like a law firm or an IT firm. And there's a typical dilemma that they just stated that, of course, the the the typical law firm IT law firms have the sort of in their statutes, they have to be neutral, and they should support their clients. But, of course, they are also entrepreneurs, so they want to increase their business. They want to increase their margin and so on. So we don't have to talk about this, but so it's a dilemma on the agent side.

对委托方而言，难题在于：如果专业度不足以判断所需服务类型和评估服务质量，该如何采购服务？我和同事将在《德国专利律师》创刊125周年特辑上发表相关文章，探讨委托代理困境，指导企业如何理解并应对这一问题。

You know, the principle side is it how can you buy in services if you're not professional enough to choose on what kind of service you need and to touch on the quality. So that's a little bit. And we we even with another colleague, we will be publishing in the hundred twenty five years patent attorney German patent attorney booklet. There will be a publication. We we actually will publish a little article on that, principal agent dilemma, and how companies can, first of all, understand it, and then second, deal with it.

我认为最关键的是：当采购依赖口碑的服务时，应该主动索要案例参考。就像专业采购部门那样定期进行资质审查——有时这些采购部门的工作甚至相当出色。

And I think this is the most important part. Typically, when you open you buy in services that rely on references, the the called qualities of reference style, then, of course, you should ask for references. So look for references, look for cases, and don't do this only one time. Do this regular, like, a typical procurement department would also do it. Sometimes even the procurement departments are good enough.

他们只是没问对问题：企业应该建立怎样的制度、指标和流程来保障服务质量？顺带一提，我们在瑞士也有咨询公司。之所以从未涉足专利代理业务——曾有收购律所的机会——就是为了保持管理咨询与法律专业之间的独立性。

They just don't ask what would be the right system or the right metrics, the right processes that companies have have already established to buy in service that rely on on back on quality. Yes. And and just to mention one thing, because you said, again, we also have a a company in Switzerland, advisory company. One reason why we never entered into the patent prosecution business, of this, we didn't got a company once offered to to buy a to buy a patent law firm. Said because we need to keep this separate, sort of the managerial part separate from the legal profession, be very neutral.

完全避免利益冲突。

No no conflict of interest.

好的。接下来我想探讨一个更具体且略有不同的话题，特别是关于投资者和企业如何看待初创企业的知识产权问题。你认为投资者和企业会如何看待初创企业的知识产权？当他们投资初创企业或以其他方式参与时，会关注知识产权的哪些方面？这重要吗？

Yeah. And next, I would like to dive into a more specific and little different topic, especially in view of investors and corporations. What do you think what relevance do the investors and corporations attach to IP in relation to start ups? So when they want to invest in start ups or have some other stake in a start up, what do they look for in IP? Is that relevant or not?

那么知识产权在其中扮演什么角色？你目前有个相关项目，或许可以向听众介绍一下这个项目。

And what role does IP play there? You currently have a project about this. Maybe you tell our listeners about this project.

谢谢提问。这确实是个很棒的项目，最初是和Sankal的一位前同事发起的，他现在也是德国应用科技大学的教授。我们觉得这是个两大智库合作的好机会，可以探讨投资者如何评估初创企业，以及我们该如何看待知识产权问题。最终成果是我们出版了一本书。

Yeah. Thank you for this question. It was actually a pretty cool project that started with a former colleague from Sankal, who's now also a professor in in in Germany at the University of Applied Science. And so we said that that's that's two big think tank and and meet people and talk about, for example, how investors investors would look at if they look at startups, who would do we look to put out to IP. And and the the outcome in the end was I mean, we published a book on it.

这本书很厚实，包含许多深刻见解，但结论其实很简单。投资者主要看初创企业三方面：团队、市场和技术。知识产权主要与技术相关，比如技术是否真正受到保护？

We a big book, but there's a lot of insights there too, but the the the findings were pretty easy in the end. So what investors look for at startups is three things. One is team, second is market, and the third one is technology. And the IP part comes in predominantly with that third one with the technology. So the integration would be, for example, is technology really protected?

更深入来说，并非只要申请专利就好。关键在于专利是否能产生实际影响，比如阻止竞争对手复制产品或核心组件——这些对价值创造至关重要。其次，知识产权也能反映团队素质。如果团队对自己申请或未申请的内容毫无概念，那向投资者传递的信号就是：当问题出现时，他们要么发现不了，要么为时已晚，甚至可能误判形势。这又回到了团队专业度的问题——能否解决问题才是关键。

And then, for example, for the for the more elevated ones, it would mean no. It doesn't mean they file any patent, and this is better than no patent, but if they file the patent that has an impact, for example, in in disrupting competitors in copying the product or one to one copying the component that is relevant for value creation. And second, that I'm saying that it would also be attributed to the team. So if the team has no clue what they filed and did or didn't do, then so if the team has no IT set in us, it will also indicate to the to the investors, well, if there are any problems coming up, they either won't see it or won't see it in time, or they will trust to the wrong stuff. So the IT also reads back to the first part, the, you know, key savviness of the team It means, okay, this team can solve problems.

团队需要具备解决问题的能力。第三点关于市场：如果你对行业内其他参与者的动向一无所知，比如从未进行过知识产权尽职调查，这可能反映出你的市场认知存在缺陷。总结来说，投资者主要关注团队、市场和技术这三大项，其中知识产权虽以技术为主，但也与其他两项密切相关。关于企业方面，我们引用过某大型企业的观点——他们将投资或收购作为创新战略之一。

They can understand what can solve problems. So so and third with the market, you could say, well, if you're in an area where you have no clue what the others are doing in the the people, for for the vendor journey, this would be maybe, like, a IP due diligence that you're doing. So if if you have no clue about the other market, never looked around the fence, then this might also indicate on your market knowledge. So so let's say from the investors, just typically these big things, team, market, technology with the key IP aspect to the technology, but also including those others ones. And with regard to the corporations, we have also a nice quote from a large corporation that is investing in companies or buying companies as a as one of their innovation strategy.

这家企业强调：必须高度重视知识产权，要像对待生产和市场开发那样将其纳入投资考量——当然投入规模可以不同，但需要给予同等程度的重视。避免出现这种情况：当你准备把企业卖给大型化工公司时，虽然夸耀全球业务和先进技术，却只能提供美国专利。对方可能会说：'如果只能获得美国市场权利而非全球保护，估值将大幅缩水，甚至可能完全失效——因为我们的商业模式需要全球范围内的保护。'

And they said, okay. Take IP very seriously. Invest in it. So it would mean, right, include the IP work in your investment, like you do it for your production, like you include it for your market development, but, of course, with not the same necessarily the same size, but with the sort of same relative attention that this topic needs and do the same time. So avoid that you, in the end, want to sell your business to a large chemical company and telling them, wow, world business and all these areas and so on, great technology, and then only offering in The US patent because then they might say, well, if you're offering me only The US market and not the rest of the world, so our valuation will be much small or it's even void because because we can practice it in our business model if it's not protected in the same way.

我认为这些正是初创企业可以从投资者和企业那里借鉴的两点经验。我甚至想说，那些可能经营时间不长的中小企业，也应当好好看看所谓的初创企业是如何应对并从中学习的。

And I think these these are the two learnings from the investors and from the corporations that a startup can, yeah, consider. And I would even say those SMEs who are maybe not doing for decades what they are doing, they they ideally should also have a look at how the so called startups are dealing with it and learn from them.

你刚刚又写了一篇书章，关于另一个主题，因为

And you have also just written a book chapter, some some other topic now again, because

我有机会在这里请教你

I have the chance to pick your brain here

在这次访谈中。我想为听众获取尽可能多的价值。我刚发现你写了一篇题为《培育和维持21世纪技术集群的关键成功因素》的书章。能否为不太了解这领域的听众简单解释下什么是技术集群？我们的听众来自反不正当竞争法、商标法等不同领域。

in this interview. I want to get as much value for the listeners as possible. And I just found out that you have written a book chapter on entitled key success factors in nurturing and sustaining twenty first century technology clusters. Can you briefly explain what technology clusters are for listeners that are not so deep into this? We have listeners from, like, unfair competition law and from trademarks and so on.

你所说的培育和维持具体指什么？科技驱动型企业能从这篇书章中获得哪些最重要的启示？

And and what do you mean by nurturing and sustaining? What are the most important messages to tech driven companies from that that they can take from this book chapter?

你知道吗？谢谢。基本上这篇出版物还未正式发表，将于明年年初出版。

You know? Yeah. Thank you. Basically, this this publication, it's not published yet. It will be published beginning of next year.

但它基于我们几年前的一项研究，实际上是关于企业通过创新实现跨越式发展的努力。有趣的是，当时有两件事在同步进行：一是更新知识产权制度（即IP法），同时也在更新商业和投资法——关于在某个地方能投资什么或不能投资的规定。

But it's based on a study that we did some years ago on actually, the time companies based endeavors to leapfrog their innovation force. And and and and interestingly, there were two things going on in parallel. One was updating and renewing their intellectual property regime, so their IP law. And at the same time, updating and renewing their commercial and investment law. So what could you do to invest in a place or not?

你可以看到，其结果是，欧洲公司，比如十年前，他们可能担心自己的机器会被复制，或者大企业在投资时——以中国为例——他们通常害怕产品会被仿制，甚至整个公司在异地被复制。而如今，关键策略是中国投资者直接收购欧洲企业，就像最近德国库卡案例甚至演变成政治事件，还有其他类似情况。这是一项重大倡议，中国称之为‘一带一路’。在那项研究中，我们试图理解这个长期大规模战略的运作机制及其相关术语。

And you could also see in in a consequence, European companies, like, ten years ago, they might have been afraid that their machines would have been copied or the large corporations that when they were investing in in, for example, I just think China is an example. And then they were typically afraid that their products could be copied or the whole company could be copied at the other place. And now today, the the key strategy is Chinese investors just buy European companies like we had in recently in Germany with KUKA that became a political case even and some some other aspects. So so so it's a big initiative because China China called the the road and belt initiative. And in that in that study, we tried to understand what what was going on with a very large large term, large scale strategy, and that there's some on on terms for that.

以这个案例来说，它直指欧洲企业，旨在帮助人们理解正在发生的不仅是微观层面，更是宏观长期层面的事情。对政策制定者而言——这本书的读者也会感兴趣——通常存在一种快速捷径。某些政客至少会迅速行动：他们看向硅谷，赞叹‘这太棒了’。

And let's say, in that case, was direct to European companies. It was directed to those understanding maybe what's going on, not only on the on the small level, but on the on the large scale level, on the on the long term level. With regard to policymakers, and that that could be for the for the readers of that book also interesting, there is a typically fast or shortcut that yeah. Let's say, some politicians, at least, like, quickly to do. They they they look at Silicon Valley, and they say, oh, this is great.

加州的做法让我们也想效仿，给我们的科技园起个类似的名字。显然，这不是地理概念，而是聚焦技术集群——同一价值链上不同层级的参与者聚集在相同区域，既存在竞争又能整合专业知识。

What was done in California, so we want to be cool too. Let's call our FTPTC also whatever value. And and it's obviously, it's not meant with a geographical perspective, but rather with a focus on on a on a technology cluster and where you would have different players on the same level at the same value chain and also following that value chain where they would have, like, competition in one area geographically combined in them. Also, expertise would be amalgated there. It would be stacked.

专家会前往那里，因为他们知道那里有职业发展机会，不必困守于某家公司的某个岗位。投资者等生态系统角色也会聚集。当然，从零构建这样的体系极其困难。想验证这点的人可以查阅资料：硅谷其实源于五十年前的国防投资。

People would Experts would come there because they would know there's a career to be experienced there, and you would not be stuck with one single company, at one place, with one head of that company. So you you could move on and more more, let's say, ecosystem layers, like, for example, investors could go there. So it would be on that. Of course, to build up something like that from new is very difficult. And for those who'd like to compare with the particular validation, do some reading or some some analy analysis, seeing that Silicon Valley is going back already from fifty years to defense investments.

正如所见，大量资金来自国防领域，这些投资最初用于国防研发，后溢出到民用领域构建完整价值链。想复制硅谷模式的人应当意识到这点，并思考是否该盲目效仿其他不兼容地区。从战略角度，更应立足自身优势打造独特性。

So it's still as you can see, this is the thing that they know must know. A lot of money comes from the defense that is invested in those companies where where r and d is taking place for the defense perspective and then rather outsourced into other areas, outspiring to other areas, like, in the civil area, building up our whole value chain coming from there. And so so people like to copy Silicon Valley. They should be maybe be aware of this, acknowledging this, and then seeing whether this is a smart way to copy some other regions that they're not compatible. And from a strategic point of view, would always rather consider of being unique on your own, take the strengths you have.

从品牌角度看，若你真正独特，就无需套用其他地区的标签。要更精准地定位自己。

And from a branding perspective, but if you're unique and really special, then you don't need to copy the branding terms from other areas. So become more specific.

本质上是要更具创新性。我们这次访谈非常精彩。最后我想问最关键的问题：我代表许多中型企业...

Be more innovative, basically. Right. So, yeah, we we had a really interesting interview. And in the end, I want to ask you the most important question, basically. I'm representing a lot of medium sized companies.

这就是为什么我最享受这部分。那么对于中型企业改善其知识产权组合和知识产权管理，你最重要的三条建议是什么？你能告诉他们些什么？

That's why the where where I have most fun with. And so what are your three most important tips for medium sized companies for improving their IP portfolio and their IP management? What can can you tell them?

好的，好的。感谢提问。首先我要说，就像常言道，问专家专业事——请认真对待知识产权。既然我们谈到知识产权，这意味着什么？

Yeah. Yeah. Thank you for asking. First of all, I would say, like always, if you ask the goat about the card thing, take IP serious. As we're talking about IP, what does that mean?

这意味着管理层需要理解，高管层需要明白这有什么用、存在哪些风险、又有哪些机遇。说到风险规避，申请专利不只是规避风险。风险规避可能意味着先理解风险，再明白需要中和哪些风险而哪些或许不必。同时也意味着创造机遇，并且管理那些所谓的错失良机，要敢于推测可能错过的机会。

It would mean that the management has an understanding, The executive level has an understanding what this is useful for, what are the risks, and what are the opportunities. In saying this, risk mitigation is not only filing a patent is not just risk mitigation. Risk mitigation might mean understanding the risk, then understanding what do you need to neutralize and which maybe not. And it also means opportunity creation and and and manage the drone, talk about the so called missed opportunities. So go to guess about the missed opportunities.

如果只是申请专利后就置之不理，既不监督也不执行，那你就错失了机会。其次，如果不保护或考虑那些真正创造价值的领域——这些领域可能已不再是机器本身，或许是服务而非软件，或是整个系统以至于无法申请专利——你就需要建立一套正式与非正式保护机制相结合的系统，与内部不同部门乃至外部供应商共同构建，否则就像单腿跑步一样难以持久。

If you just file a patent and forget about it, you're not supervising it, you're not enforcing it, you're missing out on that. Second, if you don't protect or think about those areas where you really create the value, that is maybe not the machine anymore. It might be the service, not the software. It might be the whole system where you cannot even file a patent anymore. You you need to create a combined system of informal and formal protection mechanisms to create this with different people's internal and maybe also different suppliers outside, then you're not sort of you're only playing or running on one leg.

体育界常说先成为第一，然后策略就是保持第一。在商业领域，我要说：创造价值并获取价值。第三点，除了战略还要考虑如何实施。比如思考需要建立哪些流程、组织架构如何调整，别仅仅因为律所每年盛情邀请圣诞派对就把所有事务外包。要专业地考量外包内容、管理采购的服务，同时明确必须自主完成的事项以及如何通过持续学习实现自我提升。

And in in sports, you typically say become number one, and then the strategy is stay number one. And an idea would say, yeah, create value and capture the value. And third one, consider next to your strategy how you want to implement it. So what would be my client, think about the processes you need to install, think about the organizational part, and don't just outsource everything to your law firm because they invite you so nicely to the Christmas party every year. Consider really professionally what to outsource and how you manage these services that you buy in and consider what you have to do on your own and how to to develop yourself for continuous continuing studies.

嗯。

Yeah.

基本上就是要更积极主动，自己更深入理解知识产权。建立更好的认知而非全盘外包，对吧？是的，这也是我观察到的现象。

Be more proactive and understand IP better yourself, basically. Have a better understanding and not outsource everything. Right? Yeah. That's that's also something I see.

这通常有助于提升客户的满意度。基本上，他们了解得越多，对知识产权了解得越多，参与决策越积极，对公司就越有利。是的。

That's that that usually helps with with the happiness of my clients. But the more they know and then the more they know about IP and the more actively they are involved in the decisions, the better it is for the company, basically. Yeah.

是的。对的。没错。

Yes. Right. Yeah.

所以我们基本上只是触及了所有讨论话题的表面。如果大家想了解更多，怎样才能最方便地联系到你呢？

So we were just able to scratch the surface, basically, of all the topics we've covered. If people want to know more, where can they reach you best?

好的。感谢你提出这个问题，马克·格莱森。我认为最便捷的方式是通过领英。你可以在领英上找到我——马丁·A·巴德，通过搜索或查看我的申请资料也能轻松找到我的邮箱。

Yeah. Thank you for asking this, Marc Glaeson. I think the most easiest way will be via LinkedIn. You find me on LinkedIn, Martin a Bader, and you will also easily find my email either there or if you Google it at one of the applications.

非常感谢你参加《知识产权星期五》节目。

Thank you very much for being on IP Fridays.

非常感谢今晚的邀请。谢谢。

Thank you so much for the night. Thank you.

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