Posts Tagged: "China"

NPEs are uniquely positioned to help China by attacking foreign entities to clear the way for Chinese companies by exerting pressure in ways that only NPEs can. Even if Chinese semiconductor companies had the necessary patents and experience to engage their foreign competitors, they would risk retaliation from these foreign parties. NPEs, on the other hand, can unilaterally attack foreigners without fear of retaliatory patent suits. Although there are a few of antitrust issues, I do not believe that NPEs that act in the best interest of China should, or will, be attacked by the NDRC or any other antitrust agency in China.

On December 8th, famed basketball star Michael Jordan was partially successful in a legal action filed in Chinese courts over the use of his name and likeness on shoes and sportswear marketed by a domestic Chinese firm. The case is further proof of a major change in the fortunes of foreign intellectual property owners in the highest courts of the world’s second-largest economy. The Jordan trademark suit goes back to 2012 when the suit was filed against Qiaodan Sports, a sportswear manufacturer operating thousands of retail locations in China which was founded in 2000 according to business information reported by Bloomberg.

Suffice it to say that 2016 has been an interesting year. The political climate is much different than one year ago amidst a growing tide of nationalism abroad and populism here in the United States. Throw in a massive migration crisis stemming from the Middle East, a slew of unexpected celebrity passings and the fact that the Chicago Cubs are lovable losers no more, and we’re about to wind down a year which seems nearly mythological in stature… As we turn the page onward to 2017, it’s a good time to take another look at some of the major trends shaping the IP and technology landscape in the United States and abroad. From increasing competition with an Asian powerhouse to the continuation of a misleading narrative about patent system abuses, the past year leaves us with many important narratives to consider for the year ahead.

Misspellings, $20 for a $200 jersey, encouraging use of Western Union wire transfers, and no visible mention of being officially licensed NFL merchandise should raise at least some suspicions… Chinese production of counterfeit NFL jerseys and other sports apparel has also attracted the attention of domestic crime rings looking to make money from unsuspecting consumers, many of whom are purchasing a low-quality product compared to the officially licensed version.

In late October, China’s State Intellectual Property Office (SIPO) released a set of guidelines for Chinese patent examiners that revises the last guidelines put in place in 2010. Although SIPO has made the revised guidelines available online in the Chinese language only, analysis of those guidelines by the European Patent Office (EPO) and others indicates that, in some important ways, the new guidelines represent a veritable inverse of the current patent examination environment seen here in the United States… China is about to become friendlier to software patents in particular and patent owners more generally by reducing the complexity of prosecution procedures and making more information publicly available. Given the large number of patent applications being filed with China’s patent office, a high percentage of which are not filed with foreign offices as well, and the growing preference for China as a patent infringement litigation venue, it’s likely that these new guidelines are further proof of the growing divide of IP regimes in the United States and China which, if left unchecked, will probably be to the detriment of the U.S. and its economic prospects in future years.

Bayh-Dole is running on autopilot without Executive branch oversight and U.S. patents are no longer the world’s gold standard. Without a course correction, we could be headed back to the bad old days… Bayh-Dole has become a driver of the U.S. economy. Every day of the year universities form two new companies and two new products from their inventions are commercialized. University spin out companies tend to stay in state becoming significant contributors to the regional economy… Bayh-Dole is a recognized best practice. The Chinese have adopted it while strengthening their patent system to better compete with us.

Wilbur Ross, Trump’s nominee to run Commerce, has a zero tolerance for IP theft, which indicates a possible change in direction for US patent policy… Ross has a long view on the American economy and has had some exposure to patents. Many of the manufacturing, textile and telecommunications companies he has refinanced owned patents. Ross as the “bankruptcy king” or “vulture capitalist” dealt with patents as one of the many assets to use to help turn around a distressed company. Using patents as collateral for a loan should not be controversial or exotic.

Of the 2.9 million patent applications which were filed in patent offices across the world in 2015, more than one million of those applications were filed with the State Intellectual Property Office (SIPO) of China, the first time that a single patent office has broken that milestone according to the World Intellectual Property Organization (WIPO). China’s huge number of filings is a big reason why worldwide patent applications rose 7.8 percent from 2014’s totals. WIPO also notes that China received more patent applications than its next three rivals combined: the United States (589,410 patent applications); Japan (318,721); and the Republic of Korea (213,694).

In early October, mobile hardware developer Nite Ize of Boulder, CO, filed a Section 337 patent infringement complaint with the U.S. International Trade Commission (ITC). The complaint alleges that 32 Chinese respondents, some of which are in Hong Kong’s jurisdiction, and eight U.S. entities are infringing upon patents held by Nite Ize in the field of mobile electronic device holders… The accused products are generally sold through e-commerce website portals like eBay.com, Amazon.com and Wish.com. In at least some cases, the accused products, which are sold by entities other than Nite Ize, are inscribed with the Steelie brand name.

By outsourcing manufacturing to the lowest bidder abroad not only have we destroyed the working middle class in America, but also we are also increasingly turning over our last economic advantage – our intellectual property… While there is nothing wrong with negotiating better, smarter trade deals, what America really needs is smarter manufacturing policies. After all, what exactly are better, smarter negotiators going to do if the United States remains an inhospitable climate for business, with extraordinarily high tax rates, unreasonable environmental regulations and loopholes that only the richest corporations can take advantage of? How could we ever reclaim widespread manufacturing in the United States if the deck is stacked against the industry?

The message is being received by patent owners around the world, including those with large U.S. patent portfolios, that China is a reasonable and fair place to resolve patent disputes… Aside from any anecdotal evidence and cultural bias theories, it is also hard to ignore the reality playing out inside the Chinese IP courts. Foreign patent holders have been having a great deal of luck in China’s IP courts, at least at the courthouse situated in Beijing… If these patent granting and litigation trends continue, we could be left with the rather mind-numbing conclusion that China, a country ruled by a communist government, has a more robust innovation protection regime than the United States, an ostensibly capitalist country that doesn’t seem to see the virtue in protecting the rights of innovators.

American semiconductor giant Qualcomm has been taking actions in recent months against a Chinese smartphone developer whose stature has been on the rise. In a press release dated October 14th, Qualcomm announced that it had filed a complaint with the U.S. International Trade Commission (ITC) against Meizu, a portable electronics manufacturer founded in 2003 and headquartered in the Chinese city of Zhuhai. Along with the ITC complaint, Qualcomm also filed a patent infringement action against Meizu in Germany’s Mannheim Regional Court and initiated a infringement-seizure action in France to begin collecting evidence for a potential future patent infringement action in that company.

In my 54 years, I’ve never protested anything. I’ve complained to my friends and family and sometimes to a few unfortunate strangers. So this has been the first time publicly protesting anything for me… Darrell Issa was a cosponsor and a major political driver of this startup killing legislation, which is why inventors are going to his events to educate him and his potential voters. Issa’s race is very close with some polls showing him down by several points. His competitor believes in strong patents. This draws a clear distinction between the candidates and inventors and startups in California’s 49th district want to be represented by someone who will preserve their rights, and their companies.

A recent Canadian survey (CRA Survey) has conclusively attributed lowered levels of R&D investment in Canada’s innovation ecosystem to the country’s unique judicial “Promise Doctrine.” The Promise Doctrine is a controversial patent elimination dynamic, judicially imposed during patent enforcement proceedings, often after a patented product has achieved its developmental endpoint, having successfully completed its long and costly commercialization. By its unpredictable applicability, like an unseen open manhole, Canada’s promise doctrine can cancel the benefits of a long journey at its market-ready endpoint… As the Survey suggests, long-lasting damage to Canada’s innovation ecosystem may already have occurred, which is why the Survey bears so heavily on the U.S. patent system’s own endpoint “open manhole”, Inter partes review (IPR). However Canada deals with its promise doctrine woes, we too have much to learn from this Canadian Survey.

Whether to compensate inventors and how to compensate inventors for their innovative work have been important topics in some countries such as Germany, Japan and China. The purpose of compensating inventors is to motivate researchers and promote innovation. Yet this has been both complicated and difficult in practice. For instance, in China, the Chinese Patent Law and its Implementation Rule are the basis for inventor remuneration, and different authorities have also actively issued their own regulations. However, among the different laws, rules and regulations (hereinafter “Rules”), there exists quite some inconsistency, such as in the amount of the inventor remuneration. Under such circumstance, industries are curious how the Rules will be applied and interpreted by the courts in case of any disputes.