Posts Tagged: "China"

As an update to my previous posts from 2017, 2019, 2020, March 2021, August 2021, 2022, and 2023, it has now been almost a decade 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 76 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.).

Reasonable compensation for standard essential patent (SEP) holders is crucial to create the incentives for adequate investments in standards. In particular, high-quality standards have underlain the development and proliferation of the global wireless technologies that have played such a central role in the innovation-driven growth of the internet economy. (For the key role of strong standards in technological innovation, see, for example, here, here, here, and here). It follows that the discriminatory reduction of compensation for SEP holders would reduce their incentives to participate and invest in standard setting. This in turn would reduce quality of future standards that will be key to economic growth and vitality.

In the high-stakes world of global competition, China is emerging as a key battleground, making the protection of intellectual property rights more crucial than ever. With its recent revisions to its patent enforcement and damages laws, China took a decisive step towards a more rigorous patent system that favors patentees, both domestic and foreign. This new landscape challenges businesses to adapt and reassess their strategies in the face of these transformative changes…. The latest modifications enable businesses not only to receive increased damages for infringement but also recover legal costs and punitive damages. Thus, in a post-COVID business environment, organizations should reevaluate their patent enforcement strategies within China.

The Information Technology & Innovation Foundation (ITIF) released a report last week that calls on the G7 countries to bring Japan’s “Data Free Flow with Trust” (DFFT) initiative to life. According to Japan’s Digital Agency, the goal of DFFT is to promote the free flow of data through transparency while ensuring security and IP rights. The ITIF wrote, “building an open, rules-based, rights-respecting, and innovative global digital economy will depend on a small group of ambitious countries working together—such as at the DFFT—in a flexible format to draw in relevant international organizations and other interested countries and stakeholders.”

Today, the Information Technology & Innovation Foundation (ITIF) published a white paper titled Innovation Wars: How China Is Gaining on the United States in Corporate R&D showing that, while the United States continues to enjoy a lead in several key sectors when surveying the world’s largest corporate investors in research and development (R&D), its largest economic rival is gaining and could achieve parity with the U.S. in about a decade.

The United States Trade Representative (USTR) released its annual Special 301 Report on April 26, adding two countries to the “Watch List”: Bulgaria and Belarus. In total, there are now 29 countries on either the Priority Watch List or Watch List, up from 27 last year. Belarus was added because it passed a law that “legalized unlicensed use of certain copyrighted works if the right holder is from a foreign state ‘committing unfriendly actions.’” This includes the U.S. sanctions imposed on Belarus for its support of Russia’s invasion of Ukraine. “

The Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing today featuring a panel of patent-savvy witnesses to underscore the crucial role intellectual property plays in the U.S. economy and to define the biggest threats to IP rights, both foreign and domestic. The conclusion of most panelists as to what one step is most important in reestablishing the United States as an IP powerhouse was that we need to clean up our own IP system at home in order to even begin addressing threats from foreign competitors like China.

In commercial contracts, especially with foreign entities, it is very common to agree on arbitration as a dispute resolution method. A typical arbitration agreement specifies arbitrable matters, arbitration institution, place of arbitration, and arbitration rules. In crafting an arbitration agreement, especially when the arbitration clause is embedded in the main body, contracting parties normally write into the contract the applicable law and dispute resolution authority for the main contract, but rarely do the same for the arbitration agreement itself in addition to the main contract. In general, if a dispute involves issues surrounding the validity (or arbitrability) of an arbitration clause, whereas the arbitration agreement does not provide anything about arbitrability, two questions may come up in practice: (1) what is the applicable law on resolving the arbitrability issue? (2) who has jurisdiction over the arbitrability issue – a court or an arbitration institution?

U.S. companies and inventors still filed more patent applications with the European Patent Office (EPO) than any other country, according to its Patent Index 2022, which was released today. The index showed that U.S. patent applications numbered 48,088, a 2.9% increase from 2021. However, China’s filings jumped by 15.1% over 2021, keeping it in fourth place out of the top five countries of origin for applications and narrowing the gap between it and Japan, the number three filer.

The U.S. House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet held a hearing Wednesday that was part one of a series it will be running on IP and “Strategic Competition with China.” On the same day, speakers on the final panel of IPWatchdog’s AI Masters discussed many of the same issues addressed in the hearing, with the overwhelming takeaway across both panels being that the United States needs a new plan when it comes to IP protection in cutting-edge technology sectors, where China is increasingly outpacing U.S. innovation. The House hearing was introduced by Subcommittee Chair Darrell Issa (R-CA), who explained that the United States’ national security is at risk because China is on a quest to achieve technological superiority. Issa told his colleagues that “the witnesses will both educate us, and to a certain extent, scare many of us.”

On January 23, the Information Technology & Innovation Foundation (ITIF) published a report entitled Wake Up, America: China is Overtaking the United States in Innovation Output, which applies innovation and industrial performance metrics for comparing relative innovation outputs from foreign technological rivals China and the United States. The report, produced by ITIF’s Hamilton Center on Industrial Strategy, is the latest indicator that China is close to surpassing the United States in terms of innovation output per capita and calls upon U.S. policymakers to develop a national economic and technology policy to restore U.S. dominance in innovation.

Worldwide IP filings increased by 3.6% in 2021, according to a report published November 21 by the World Intellectual Property Organization (WIPO). The increase came during a turbulent time for the world economy, at the height of the COVID-19 pandemic, as well as a global economic downturn. The biggest increase in patent filings was in Asia, where 67.6% of worldwide patent applications were filed. The United States saw a 1.2% decrease in filings and a 1% increase in trademark filings. Trademark applications grew at a much faster rate than patent applications, with a 5.5% in trademark filing activity. Industrial design filing activity also rose by 9.2% with the largest uptick again in Asia. China saw high rates of growth and is a global leader in sheer numbers across all indicators.

The China National Intellectual Property Administration (CNIPA) released a draft of new measures that would downgrade the ratings of Chinese patent agencies that approve abnormal or fraudulent patents. CNIPA released the draft on October 8, which expands on a trial started in January 2022 in four provinces. The draft sets out to “crack down on illegal and untrustworthy acts” carried out by Chinese patent agencies and promote a healthier development of Chinese intellectual property.

The U.S. Court of Appeals for the Third Circuit on Monday said in a precedential decision that Jiangsu Tie Mao Glass Co. Ltd. (TMG) should have shown up sooner in a trade secrets misappropriation lawsuit brought against it by PPG Industries if it wanted to have a chance at winning. But by failing to enter the litigation until after PPG asked the district court to enter default judgment and award damages for unjust enrichment, “its protestations were and are too little and much too late,” said the appellate court.