Posts in International

Near the end of her presentation Bartow asked a particularly enlightening question. If China can crackdown so thoroughly on its citizens why couldn’t they crackdown on intellectual property infringement and IP crimes? She explained: “Because it isn’t in their interest.” Bartow explained that in the Chinese view it doesn’t make sense to change their view of intellectual property rights because so many within the country are becoming wealthy as a direct result of widespread intellectual property infringement. Bartow ended by saying that as long as this is the view of intellectual property it will be difficult to attract the companies that they really want to attract.

The new service will allow the USPTO and the SIPO, with appropriate permissions, to obtain electronic copies of priority documents filed with the other office from its electronic records management system at no cost to the applicant. With this new service, applicants will no longer need to obtain and file paper copies of the priority documents; however, they are still responsible for ensuring that priority documents are provided in a timely manner.

Even with the discretionary substantive examination in a utility model patent application, they are generally much easier to obtain and much cheaper to get. There may also be advantages to utility model patents in China. While the fact that they are not substantively examined might make it seem that they would be easier to invalidate, that isn’t the case in reality. Under the Chinese system a maximum of 2 references can be used to fashion an obviousness rejection. “In our industry there is rarely a silver bullet,” Moga explained. It is certainly true that obviousness is the real hurdle to patentability and it is extremely common to see obviousness rejections in the U.S. that weave 3 or more references together to provide the foundation for an obviousness rejection.

On Friday, October 3, 2014, the University of Toledo College of Law will host a one-day seminar titled “Doing Business in China.” One of the goals of Doing Business in China is to refute myths regarding intellectual property protection in China and to provide an attorney or business person sufficient information to begin the risk assessment with respect to whether China represents a good strategic investment for a small-to-mid-size business. A highlight of the program will be a presentation on cross-cultural communication and negotiation for businesses and attorneys who will work with the Chinese counter parts with a discussing on how to avoid miscues and miscommunication.

The latest cooperation between KIPO and the USPTO also achieves the goal of KIPO classifying its patent collection in of the Cooperative Patent Classification system ahead of schedule. Starting January 1, 2015, KIPO will begin classifying its entire new patent collection using CPC.

On the very same day that the U.S. jobs report shows unexpectedly weak growth, the Federal Court of Australia issued a ruling directly opposite to the ruling rendered by the United States Supreme Court relative to gene patents. In Yvonne D’Arcy v. Myriad Genetics, Inc., the Federal Court of Australia ruled that Myriad’s claims to isolated DNA are patentable under the laws of Australia. That is the correct ruling, and it is the ruling the U.S. Supreme Court should have reached in Association of Molecular Pathology v. Myriad Genetics. As the patent eligibility laws of the U.S. become increasingly inhospitable to high-tech innovative businesses we can expect more job losses and worse news for the U.S. economy on the horizon.

To facilitate electronic file sharing between IP offices, such as the sharing relating to the priority document exchange (PDX) program and the program by which U.S. search results are delivered to the European Patent Office (EPO), USPTO is proposing to amend its rules of practice to include a specific provision by which an applicant can authorize the USPTO to give a foreign IP office access to all or part of the file contents of an unpublished U.S. patent application. A change to the rules is required to accomplish this due to the confidential nature of unpublished U.S. patent applications, as set forth in 35 U.S.C. 122.

Very few would argue that broader scope is easier in Asia than in the US. Not surprisingly, this is because the laws and practice are different. The US law entitles an inventor to a patent unless the USPTO carries the burden of showing that the claims lack novelty, are obvious, or lack utility… But no patent laws in Asia are so strongly on the side of the inventor as compared to the US. So oftentimes the practice is that the burden of proof is on the inventor/applicant to show that they deserve a patent. Saying it another way, in the US it is your right to get a patent, while in Europe or Asia it is more like a privilege.

The value of such innovation is best measured through the improved health outcomes for patients. In this context, a few examples from the developing world are even more illustrative. Given that those who most vehemently oppose protection for incremental innovations frequently cite the need for treatments for neglected diseases and maladies of the developing world, it is important to note that many of the treatments that do exist for the world’s most vulnerable populations are themselves incremental innovations. Numerous incremental innovations have resulted in improvements that have specific application to neglected diseases and the maladies of the developing world.

Essentially, innovation patents are 8 year short form patents available in Australia as an alternative, or in parallel with standard, or utility, patents. An innovation patent can be filed on an obvious invention, is hard to invalidate and, when filed as a divisional from a standard patent application, can be infringed from a date before the standard patent application was published.

Canada is not the first country that comes to mind as a threat to U.S. trade. After all, Canada is our largest goods trading partner, with $632 billion in total goods traded bilaterally during 2013. . . Over the last decade U.S. pharmaceutical companies have faced trade challenges in the form of a narrow interpretation of patent eligibility in Canada. Canada’s patent utility provisions are a serious threat to U.S. innovative industries, and therefore are legitimately being raised in NAFTA’s dispute settlement system.

The past decade has seen tremendous growth in design patent filings, increasing from 582,000 in 2004 to over 1,217,000 in 2012 worldwide. In 2012, the 17% growth over the prior year in applications was the highest one year growth seen since reporting started in 2004… President Obama signed the Patent Law Treaties Implementation Act of 2012 into law in December of 2012. With the inclusion of the United States in the Hague system, it can be expected that international filings using the Hague system will continue on an upward trend. Gregoire Bisson, Director of the Hague Registry, was recently quoted stating that the Hague System will grow massively, as South Korea is scheduled to join in July, and “Japan, China, the 10 Asean countries and Russia could join in 2015.”

Although the IBM news release did not contain any specific reference to a patent or patent family that represents this innovation, IBM acknowledges that the company holds 1,560 cloud patents. A quick patent search for patents that may relate to the described innovation uncovered U.S. Patent No. 8,429,659 (“the ‘659 patent”), which is titled Scheduling jobs within a cloud computing environment. The innovation described in the ‘659 patent provides an approach to prioritizing jobs within a cloud computing environment so as to maximize positive financial impacts (or to minimize negative financial impacts) for cloud service providers, while not exceeding processing capacity or failing to meet terms of applicable service agreements.

WIPO is an agency of the United Nations, so I suppose a Gurry reappointment was to be expected. After all, the UN is poised to declare that the Catholic Church’s pro-life teachings are tantamount to torture, the UN has done absolutely nothing substantive to assist in the recovery of 300 teenage girls kidnapped by Islamic fundamentalist terrorists in Nigeria, the UN has historically always had extraordinary abusers of human rights on the Human Rights Council, such as Cuba, Libya, Saudi Arabia, Egypt and China, to name but a few, and despite the fact that the UN knows that Russia rigged the annexation vote in Crimea, the organization is unwilling or simply incapable of stopping Vladamir Putin. All the while the UN never seems to miss an opportunity to demonstrate its anti-semitic nature.

While all nations have a great deal to gain from attracting foreign direct investment and research spending from multinational firms, developing nations in particular stand to gain tremendously. These investments create jobs, enhance productivity, and foster economic growth and development. However, robust intellectual property rights are a necessary prerequisite. The activists and government policymakers who claim that IP rights are a barrier to economic development have it backwards. Strong intellectual property rights incentivize innovation which facilitates economic growth and development.