Posts in International

CNIPA Cracks Down on ‘Clout-Chasing’ Trademark Applications

On February 14, 2022, the China National Intellectual Property Administration (CNIPA) issued a notice regarding “clout-chasing” trademark applications or registrations (the “Notice”). The Notice stated that CNIPA, on an ex officio basis, had refused or invalidated over 400 applications related to “???” (Bing Dwen Dwen, official mascot of the Beijing 2022 Winter Olympics) and “???” (Eileen Gu, a skier who won three medals in the Beijing 2022 Winter Olympics). Similar bad-faith trademark applications have not been uncommon throughout CNIPA’s history. In fact, clout-chasing, a specific type of bad-faith trademark application, has become much more prevalent in recent years. In response, CNIPA has issued a number of notices refusing such malicious trademark applications, especially since the April 2019 amendment of the Chinese Trademark Law.

Government-Forced Technology Transfer Is Almost Always Wrong

What does the invasion of Ukraine have to do with COVID-19? Would you believe intellectual property is the link? Stay with me on this; it’s an interesting story. Recently, it was confirmed that the Main Intelligence Department of the Ministry of Defense of Ukraine – apparently with some help from volunteer hackers – managed to breach the network of Russia’s most guarded nuclear power facility and make off with extremely valuable trade secrets. The Beloyarsk Nuclear Power Plant contains the world’s only two operational “fast breeder” reactors. More than 20 countries, including the U.S., Japan and France, have been working for decades on this technology, which is supposed to be able to extract close to 100% of the energy from uranium, compared to about 1% for light water reactors. In other words, this is a process that can produce large amounts of energy while completely consuming the fuel and creating virtually no nuclear waste. Whoever is able to commercialize it will make a fortune. So far, no one has come close to the Russians.

Senators Tell Raimondo COVID Waiver Compromise Would Be a ‘Gift’ to China and Russia

Senators Thom Tillis (R-NC), Tom Cotton (R-AR) and Marsha Blackburn (R-TN) sent a letter yesterday to Secretary of Commerce Gina Raimondo expressing their “grave concerns” with the compromise language agreed on recently in the ongoing talks to waive intellectual property rights for COVID-related technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. On March 15, the European Union, United States, India and South Africa announced the compromise language. The text is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries.

Expert Group Analyzes AI, Copyright and Designs

The European Intellectual Property Office (EUIPO) recently published a deep dive report, titled Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs. The report is a product of the Impact of Technology Expert Group, which was established in early 2019. They followed an approach based on Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’ also known as the Code Theory. This describes how human online activity is regulated by law, social norms, and the market, taking into consideration the internet’s technical infrastructure. This approach led to a double-edged sword metaphor, in which a particular technology can be used either to infringe IP rights or to protect/enforce them, presenting to some extent the same features in each case.

U.S. Patent Grants Fell 7% Last Year, but ‘Software-Related’ Grants Remained at 63%

As an update to my posts from 2017, 2019, 2020, March 2021, and August 2021, it has now been 93 months since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased over 73 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.). Further, it has been 11 years since famed venture capitalist Marc Andreessen wrote the influential and often-quoted op-ed piece in the Wall Street Journal titled “Why Software Is Eating the World.” Today, the digital transformation where software is “eating the world” is undeniable. Let’s look at some facts and figures from the USA, Europe, and China.

OECD/EUIPO Report: China and Hong Kong Account for 75% of Dangerous Counterfeits

A new study on trade in counterfeit goods that pose health, safety and environmental threats has found that China and Hong Kong account for some three-quarters of exports of dangerous counterfeits. It also found that online sales represent 60% of seizures of dangerous products destined for the EU. The 90-page study was published on March 17 and jointly conducted by the Organisation for Economic Co-operation and Development (OECD) and the European Union Intellectual Property Office (EUIPO). It is based on customs seizure data and other enforcement data from 2017 to 2019, as well as interviews with enforcement experts.

Latest WTO Waiver Compromise Text Targets COVID Vaccine Patents, Draws Criticism from Both Sides

Reports overnight indicated that the European Union, United States, India and South Africa have reached a compromise on language for a waiver of intellectual property rights related to COVID-19 vaccine technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The compromise is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries. The latest text is limited to “patented subject matter required for the production and supply of COVID-19 vaccines” only; the previous proposal was much broader. “Patented subject matter” is defined as including “ingredients and processes necessary for the manufacture of the COVID-19 vaccines.”

What it Means that Russian Businesses Can Now Legally Steal Intellectual Property from ‘Unfriendly Countries’

Russian businesses now hold the key to pilfering, producing and profiting from western technologies. As of Monday, March 7, the Russian government has legalized intellectual property (IP) theft. With this move, businesses in Russia can now violate IP rights, as they no longer need to compensate patent holders from “unfriendly countries.” The list of “unfriendly countries” includes the United States, Canada, Australia, Switzerland, Norway, Iceland, the United Kingdom, Japan, South Korea, New Zealand, Singapore, Taiwan and all 27 European Union (EU) member countries. Russia has faced growing isolation from the Western world following President Vladmir Putin’s invasion of Ukraine. The United States, EU member countries and others recently initiated sanctions against Russia and have enacted crippling trade limitations. Currently, Russia is sufficiently meeting its supply and demand needs for agriculture, energy and natural resources. However, Russia’s isolation and growing lack of skilled producers have led to a stark decrease in technological production and innovation.

IP in the Crosshairs: Government Agencies Terminate Relationships with Russian IP Entities as Kremlin Sanctions IP Theft

The United States Patent and Trademark Office (USPTO) announced last week that it will terminate engagement with the Russian IP Office (Rospatent) as well as the Eurasian Patent Organization (EAPO) and the IP Office of Belarus, which has been cooperating with Russia in the lead-up to and during the Russian invasion of Ukraine. The USPTO also said on Wednesday that, effective March 11, it is no longer granting requests to participate in the Global Patent Prosecution Highway (GPPH) at the USPTO when those requests are based on work performed by Rospatent as an Office of Earlier Examination. And, in pending cases where the Office granted special status under the GPPH to applications based on work performed by Rospatent, “the USPTO will remove that status and return those applications to the regular processing and examination queue, meaning that they will no longer be treated as GPPH applications at the USPTO,” said a USPTO statement. “Like so many, we are deeply saddened by the events unfolding in Ukraine,” said the USPTO. “We hope for the restoration of peace and human dignity.”

Senators Take Aim at Chinese Anti-Suit Injunctions with ‘Defending American Courts Act’

A bipartisan group of five U.S. senators have introduced a bill to amend Chapter 28 of Title 35 of the U.S. Code to include language that would “combat corrupt Chinese Courts from issuing ‘anti-suit injunctions,’” according to a joint press release issued by the senators today. Senators Thom Tillis (R-NC), Chris Coons (D-DE), Tom Cotton (R-AR), Mazie Hirono (D-HI), and Rick Scott (R-FL) introduced the bill on March 8. An anti-suit injunction is an injunction issued by a foreign court to limit the rights of parties to pursue litigation in U.S. courts.

Banksy’s Dilemma: IP or Art?

The struggles that most artists endure include creativity blocks and economic hardship; however, British artist Banksy seems unaffected by either of these. His street art is celebrated all over the world for its anti-authoritarian tone and his extremely secretive personal identity. Recently, he has even been venturing into Non-Fungible Tokens. But unwittingly, and rather humorously, Banksy is facing a different kind of dilemma in terms of either revealing his overtly confidential identity or losing exclusive rights to his works.

Exploring the 2022 EPO Guidelines for Examination

The European Patent Office (EPO) recently published its Guidelines for Examination 2022, which come into force on March 1. Compared to previous years, the volume of changes is much smaller, and this witnesses the effort by the EPO in past years to arrive at a more stable text of the Guidelines, particularly concerning the software patentability and biotech sections. Yet some changes have been made, mainly to software patentability guidelines, as well as to other important sections, such as partial priorities and amendments to the description. Continuing the trend of past years, the Guidelines continue to be enriched with helpful examples.

Big Tech and China, Inc. Rejoice in DOJ Draft SEP Policy Statement and FTC Speech

Last summer, I lamented how the Department of Justice – Antitrust Division (DOJ), without Senate confirmed leadership, was hastily pushing through policies that augmented the already-enormous power of Big Tech and benefitted China’s interests. Similarly, I uncovered how the App Association, a Big Tech-funded advocacy organization masquerading as a group of small app developers, was able to trick the Federal Trade Commission (FTC) into inviting it to speak at its July 2021 Commission meeting alongside legitimate small businesses. This is the same association that supported Apple in its litigation against (real) app developers, issued a June 2021 press release against the House bills aimed at regulating Big Tech, and misses no opportunity to support Big Tech interests.

China Joins Hague System – Here’s Why You Should Care

An IP announcement that may have slipped past you in the last few weeks is that China will now become a part of the Hague System for the International Registration of Industrial Designs. The Act will officially enter into force on May 5, 2022. Does this make a difference to you and your clients? Yes, in a very, very big way. Back in the mid-1990s, I had a key client operating out of Hong Kong, prior to the transfer of sovereignty from the UK back to China. He had, by then, become the world’s largest “maker” and seller of vacuum cleaners. Yet, he had only a small staff, mostly engaged in shipping and monetary transactions, i.e., paying for and getting paid for goods he bought and sold to vendors across the globe located in developing world economies.

Report Recommends Worker-Centric Competitiveness Approach to Trade Policy

The Information Technology & Innovation Foundation (ITIF) this week released a report titled “A Worker-Centric Trade Agenda Needs to Focus on Competitiveness, Including Robust IP Protections.” The ITIF is a nonprofit, nonpartisan research and educational institute that focuses on technological innovation and public policy. The report explained that U.S. trade policy has long been contentious. Traditionally, trade policy prioritized U.S. consumer interests. However, in response to a decline in U.S. manufacturing jobs and output due to unbalanced trade, President Biden raised a “worker-centric trade agenda,” turning away from this traditional approach. In his shift to a “worker-centric trade agenda,” the report recommended that President Biden should reject the counsel of anti-corporate, anti-trade progressives who deny that U.S. companies’ interests align with U.S. workers’ interests. A new competitiveness-focused approach to trade policy can support both.


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