“Absent consideration of the role of non-market factors, cross-border comparisons based on the raw number of trademark and patent applications risk overstating brand creation and innovation activity in China.” – USPTO report
On January 13, the United States Patent and Trademark Office (USPTO) published a new report on the impact of patent and trademark filing trends in China. The report, titled Trademarks and Patents in China: The Impact of Non-Market Factors on Filing Trends and IP Systems, discusses how the high rate of Chinese patent and trademark filings may well be influenced by government subsidies and other non-market factors, rather than inventiveness and organic economic activity within China.
Measuring the Problem
According to the USPTO, evidence to support the theory that there is more than meets the eye with respect to large numbers of Chinese patent and trademark applications is evidence of the low rate at which domestic Chinese inventors file for patent protection overseas, the low rate in which inventors commercialize patented inventions in general, and the high rate of bad-faith trademark filings and fraudulent trademark specimens.
Indeed, in 2018 only 5% of Chinese applicants filed foreign counterpart applications. By comparison, 80% of U.S. applicants filed foreign counterpart applications.
With respect to licensing, the United States ranks first in IP receipts as a percentage of total trade, while China ranks 44th. In 2019, the United States accounted for 32.5% of total global licensing receipts.
The issue is one that has gained attention now no doubt because of the tumultuous relationship between the United States and China relating to economic activity, and due to heightened tensions as the result of the COVID-19 pandemic. While this report has no doubt been a work in progress for some time, it is likely being issued now, in the days leading up to President Elect Biden being sworn into Office, in order to have the report placed into the stream of knowledge, before it may be buried by an Administration that is expected to have a more friendly approach to China and which may not want to ruffle feathers.
Putting politics aside, if that is even possible anymore, this issue has gained attention over the last several years because of the volume of trademark and patent applications filed in China and how the raw numbers of those filings have dramatically outpaced the number of trademark and patent applications by global competitors. Indeed, the volume of trademark and patent applications in China is the highest in history. In 2019, authorities in China received 7.8 million trademark applications and 1.5 million utility patent applications, accounting for nearly half of the global total of all trademark and patent applications filed.
Chinese Innovation in Context
While the number of patent applications filed is often used as a proxy for the intensity of innovation within a particular country or ecosystem, and the number of trademark applications filed is often used as a proxy for the intensity of creativity and burgeoning economic activity, the USPTO cautions that the raw numbers do not tell the entire story. “Although numerical comparisons involving China may relate in some measure to its [creative and innovative intensity], conclusions in this regard should not be reached without additional context.”
The “context”, as the USPTO puts it, when speaking of China, is the uncomfortable (and unfair) reality that the Chinese government subsidizes the filing of both patent and trademark applications. These subsidies greatly contribute to inflated filings that would not otherwise occur but for the subsidy, and which lead to very low-quality patent applications on thin or non-existent innovations. When dealing with trademarks, the same government incentive structure has often led to fraudulent trademark filings, or bad faith filings that outright copy the marks of others.
The report provides some examples:
- In 2013, Shenzhen issued operating procedures that allowed applicants to seek a subsidy of RMB 5,000 (approximately USD 750) for trademark registrations in eligible foreign countries, including the United States.
- In 2019, the Shanghai government raised the per applicant maximum annual subsidy for international patent filings from RMB 1 million (about USD 142,000) to RMB 10 million (USD 1.42 million), and the per patent subsidy from RMB 30,000 (USD 4,500) to RMB 50,000 (USD 7,500). The per patent subsidy for domestic patents was reduced to RMB 2,500 (USD 370).
- In December 2019, the Beijing government adopted a similar approach to the Shanghai government, with an applicant now entitled to as much as RMB 20 million (USD 3 mil- lion) in foreign patent subsidies per year (up from USD 150,000). The USD 3 million cap is higher than the RMB 2 million (USD 300,000) cap for domes- tic patents.
- Also in December, 2019 the Beijing municipal government also raised the per foreign patent subsidy from RMB 20,000 (USD 3,000) to RMB 50,000 (USD 7,500). The USD 7,500 per foreign patent subsidy is higher than the RMB 1,000 (USD 150) offered per domestic patent.
“Absent consideration of the role of non-market factors, cross-border comparisons based on the raw number of trademark and patent applications risk overstating brand creation and innovation activity in China,” the USPTO concludes. “These non-market factors are also undermining domestic and foreign registries, stretching the capacity of China’s patent and trademark examiners and review authorities, and narrowing the scope of available protection for legitimate rights holders.”
It is because of the burden caused by bad faith and fraudulent trademark applications coming from China that the USPTO has enacted a variety of rules to thwart Chinese applicants from flooding the Office with what are sometimes deceitful, sham filings. In August 2019, the USPTO started to require foreign domiciled applicants to employ a U.S. trademark attorney for filings in an attempt to cut down on the volumes of fraudulent and bad faith applications coming from China primarily. Then in February 2020, the USPTO began requiring applicants to provide an e-mail address in addition to the e-mail address of their registered practitioner, another measure aimed at fighting fraud and bad faith.
A Strategy that Incentivizes Poor Quality and Bad Faith
What does this all mean? That is a good question. Those in the industry have known for some time that a great many of the patent applications filed in China are extremely low quality. These applications— referred to as China only applications— demonstrate little innovative prowess and will never be the subject of commercialization by anyone. If the goal is to teach the Chinese people how to file a patent application and to send the message that the government favors patents and innovators, there is nothing wrong with China only applications, which could be a very effective long-term strategy. If the goal is to portray to the world that China has outpaced the United States and Europe with respect to innovation, shaving time off jail sentences for filing a patent application seems a foolish strategy.
As for incentivizing a trademark mill that just fraudulently files applications, in bad faith, which could never be allowed, that strategy probably seemed like a good idea to someone somewhere, but seems to do nothing more than encourage fraudsters; and if there is any group of people who don’t need encouragement it is those who operate on the fringes, manipulating the system and walking on the edge of criminal behavior.
Join the Discussion
12 comments so far.
JacekJanuary 19, 2021 04:01 pm
David Lewis _ I could not agree with you more. The patent has value only when it has a chance to be reinforced. “Efficient Infringement” + PTAB means that the value of a U.S. patent by an individual Inventor equals now not “$0” but minus value after counting the cost of the invention development, patent, attorney, cost of defending it, and lost TIME. In fact, it is LIABILITY. The fact that people still publish their work is only because the legend that hard work is being rewarded is still alive. Once more people realize the hard reality, they will stop. Unfortunately, the truth about the current reality new US inventor learns at the last stage of his/her work. People first focus on the solutions and learn about idiotic laws later on. I have myself a couple of things that will never see daylight in the U.S. It is not worth it. The latest cries to increase participation of women in US patents I see as USPTO on the lookout for more victims. Peddling falsehood.
David LewisJanuary 18, 2021 08:26 pm
I think the report misses the most obvious contribution (and possible cause) for the high filings of patent applications in China. Patents in China often (possibly usually) are worth more than their US counter parts. In China, one get an injunction against a potential infringer prior to resolving the infringement law suite, much easier than in the US (in addition to China not having the same issues with IPRs and patent eligibility troubling its patents).
It is unfortunate, but while we have been busy degrading (or destroying) our patent system, China has been building their’s up.
Whether or not the increase in the value of patents in China and decrease of the value of patents in the US and the differences in things such as the ease of getting an injunction (and other differences) fully explain, the rise in filings in China, it logically would seem to be a significant factor.
JacekJanuary 18, 2021 12:08 pm
“HUGE mistake their of confusing the wants of certain players (and satisfying those wants)”
– Nobody here thinks that this is “their” mistake. They fulfill the objectives of people they REALLY represent (The moneyed ones), not the rest of the suckers still believing in fairness and democracy when MONEY are permitted in politics.
1) Get rid of “Citizens United.”
2) Brake the Big Tech.
3) Support 3348. In August 2018, Elizabeth Warren proposed a federal bill requiring, among others, that 75% of shareholders and directors must approve any political spending.
Then and only Then we can count on real positive change, not only in USPTO.
Start from the head of the snake.
American CowboyJanuary 18, 2021 09:44 am
I can’t help believing that the Chinese government knows all of this nonsense that its people are generating is being filed at the USPTO, and smiling at the problems it causes for the USPTO and legitimate filers.
AnonJanuary 17, 2021 08:51 am
I will piggyback here (as well) on the notion of your “84%.”
That 84% number is by the same administrative agency that allowed those same patents in the first place, and for those first allowances (continues) to assert how high their quality metrics are.
I cannot fathom why this disparity is not front and center before Congress.
I cannot fathom (well, cynically, I can easily fathom) why that same Congress thought somehow that the ‘horse is out of the barn and NO meaningful feedback from post grant to pre grant” mechanisms of the AIA could ever bolster quality in the first instance.
As I pleaded during the run-up of the AIA (and pretty much since like forever), the mantra of “quality applications” NEEDS to be switched to “quality examination.”
It is ONLY examination that the Office truly controls (and ONLY examination that should be the primary control).
I “get” that some level of control on the incoming application might be fruitful, but at the bottom line, we WANT all types of applications, and especially applications from solo inventors and those who will far more likely have imperfect applications.
The value of the ‘polished application’ should not come at the expense of creativity of the (much) smaller entities that we should be wanting to partake in the patent system.
Further, more robust quality examination need not be onerous to the applicant, and would thus be objectively neutral to the size and sophistication of the applicant.
Instead, we have had congressional capture and a far too lethal diet of propaganda from the well-monied established folks who do NOT have innovation promotion and protection as their primary drivers.
ANY view of “obtaining feedback of ‘customers'” MUST keep in mind the “Rational Actor” effect of those customers and NOT let anti-innovation-protection Rational biases influence how the system is set up.
Note that this very thing of ‘aim for compromise’ was what sunk the Tillis efforts.
HUGE mistake their of confusing the wants of certain players (and satisfying those wants) with an objective and pure innovation-protection and promotion understanding.
Such a pure and objective understanding would immediately reveal that we should EXPECT the Rational Actor effect of established (and monied) interests to be against proper reform.
Anyone who understand innovation could tell you that result.
Josh MaloneJanuary 15, 2021 03:47 pm
Pot calling the kettle black. 84% of United States patents reviewed by the PTAB are invalid.
Bill ClemmonsJanuary 15, 2021 02:27 pm
Did this report make a distinction between invention patents and utility model patents? It’s hard to tell from the article. We’ve seen a large number of utility model patents issue covering products that have been on the market for years. If the Chinese government is subsidizing those just to bump up the numbers, it wouldn’t come as a surprise.
JacekJanuary 15, 2021 11:32 am
“Quality?” In the U.S., you measure it in $., and $$$ is better than $$. to this, you have to add endless ability to sell BS to U.S. lawmakers and the public continuously. This word in US English has at least two meanings depends who use it and in what context.
China is in another realm. It is quite clear that the Chinese government takes the subject of IP seriously. Nobody spends so much, for pure propaganda purposes.
Pro SayJanuary 15, 2021 11:00 am
Eric: “How do you measure ‘quality’ of a patent application?”
Of course, in the real world, there is not now, has never been, and will never be a way to intellectually-honestly determine such.
Infringers — and Big Tech especially — do of course have their own often unspoken, intellectually-dishonestly way to determine such:
“All our patents are high-quality. Yours are not.”
alden abbottJanuary 15, 2021 10:43 am
Might this pattern reflect national industrial policy, viz., a long-term effort to build up Chinese patent portfolios that in the future could be assessed against foreign companies that seek to operate in China? Just speculating.
EricJanuary 15, 2021 10:16 am
How do you measure “quality” of a patent application?
Jonathan StroudJanuary 14, 2021 03:49 pm
Doesn’t this merit some broader examination of U.S. Patent applications filed by Chinese respondents, given there are financial incentives to file and true enablement and innovation may be lacking? We are granting a large number of U.S. patents to Chinese applicants. I for one believe we should at least study the phenomenon.