Posts Tagged: "China"

Chinese patents and patent applications are citable as prior art in most Western countries if they meet the usual criteria regarding publication dates of the cited patent and filing or priority dates of the examined patent. They always have been. However, recent developments have made them more problematic for Western country applicants, especially for independent inventors and small businesses… While in the past an inventor may have decided that it was not worth getting a patent, and many inventions have been forgotten in this manner, there is a large number of people in China who are now encouraged to file patents applications and utility model applications even for the simplest of invention. What we can do as patent agents and attorneys, is to start searching for Chinese documents when doing prior art searches. This may result in bad news for inventors who receive negative patentability reports, but at least they will not spend a lot of money only to have their patent application rejected later.

Although the scope of Rader’s role with LeEco remains to be seen, the fact that the Chinese electronics company went so far as to retain a former Federal Circuit judge with a great knowledge of American IP law strongly suggests that LeEco is very interested in protecting its patent rights in the U.S. market.

The distinctive character is one of the universally accepted criteria for registration of a sign as a trademark. This criterion is derived from the main function of a trademark, i.e. to distinguish the goods or services of one undertaking from those of other undertakings. This requirement is set out in Article 6quinquies (B) (2) of the Paris Convention for the Protection of Industrial Property and in the national laws of the countries that are parties to this Convention. Ukraine and the European Union (the “EU”) are no exception. Both in Ukraine (Article 6(2) of the Law of Ukraine “On Protection of Rights to Trademarks”) and in the EU (Article 3(1) of the EU Directive to approximate the laws of the Member States relating to trade marks), signs which are devoid of any distinctive character may not be registered as trademarks.

In recent years, the Chinese government has promoted a roadmap towards “indigenous innovation” which would see the country become a technological superpower by the year 2050. This would be fine if China intended to do so while following international rules regarding intellectual property, but it seems pretty intent on flouting whatever regulations get in the country’s way in that regard. News reports in recent years indicate that China continues to press foreign entities to follow joint venture rules in which foreign players are required to transfer IP to Chinese domestic firms despite the fact that this breaks rules put in place by the World Trade Organization, of which China has been a member since 2001.

Protection of the official names of States and prevention of their registration and use as trademarks have been the focus of attention of the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications at the World Intellectual Property Organization (the “SCT”) for over six years (since June 2009). Each of the WIPO Member States has both its own national procedures with their peculiarities and some coinciding positions on the subject. Generally speaking, when performing the examination, the competent national authority examines the sign applied for registration as a trademark and consisting of or containing the name of a State in light of formal and substantive legal requirements, like any other sign.

The World Intellectual Property Organization (WIPO) has published its annual World Intellectual Property Indicators. The 2015 report dissects the macro trends associated with filing activity and registrations for 2014 in the following intellectual property areas: patents, trademarks, industrial designs, and plant varieties… The twenty-year era of growth in industrial design patent applications came to an abrupt end in 2014… The decline in global applications stems primarily from the pronounced decrease in resident filings at the State Intellectual Property Office of the People’s Republic of China (SIPO), which fell 14.9% over the past year.

A rising tide lifts all boats. While an age-old saying, the concept is relatively simple really. Of course, the path to broad based economic opportunity for all has been elusive for many countries. If underdeveloped and developing countries are going to transform economically, they need to encourage and support innovation. That means many countries like those facing the so called middle income trap like China, South Africa and Brazil, may want to think about IP protection and enforcement and what it could mean for economic development, in terms of encouraging foreign investment, and with respect to raising the quality of life.

The IP5 is the name given to a forum of the five largest intellectual property offices in the world that was set-up to improve the efficiency of the examination process for patents worldwide. The top five Patent Offices (IP5) have recognized this internationalization phenomenon and many directives have been introduced to facilitate cooperation between the patent offices… For example, the IP5’s Common Citation Document (CCD) application now allows access of up-to-date citation data of all five patent offices.

Based on my experience I can report to you that the vast majority of the people at WIPO are competent, dedicated and deliver as required, many of them well beyond that. But this belies a profoundly serious problem with governance. The agency, in my opinion, is run by a single person who is not accountable for his behavior. He is able to rule as he does only with the tacit cooperation of member countries who are supposed to act as WIPO’s board of directors. And he is ultimately protected by an anachronistic shield of diplomatic immunity.

Chinese legislators have attempted to enact anti-terror legislation purportedly designed to protect Chinese citizens against terrorist threats. In late December, China passed a law requiring both telecommunications and Internet companies operating in the country to provide decryption, technical interfaces and other assistance to public and state security organizations to conduct investigations of potential terrorist activities. The tech sector has misgivings about Chinese regulations that would force the handing over of sensitive data. Imagine a leak of encryption keys leading Chinese hackers to degrade performance of a foreign tech provider, all in the name of promoting indigenous innovation. That’s a pretty extreme scenario, but one that’s not completely unimaginable considering recent cybersecurity headlines.

Although the Chinese Patent Law is a mere 31 years old, it has already gone through 3 major revisions, the last being 6 years ago. In its most recent effort, China just released the “Draft 4th Amendments to the Chinese Patent Law” for public comments, which are due by Jan 1, 2016. The proposed amendments will significantly strengthen areas such as patent enforcement and broaden design patent protection.

“At the end of the day innovation is important,” Jung explained before he lamented the fact that the United States “seems to be making it harder and harder to be competitive globally…” Jung ended his presentation by pointing out that in 1820 the United States contributed only 1.8% of world GDP, but that thanks to an innovation economy the United States peaked at about 30% of world GDP, “predominantly driven by invention-driven industries like automotive, like aerospace, like pharmaceutical and so on. These were all based on key inventions that the US dominated the landscape on. That’s clearly not going to be the case going forward. It’s going to be much more distributed across many different countries, which is why I think, again, diversity is going to be the key.”

EDWARD JUNG: ”At the other end of that value chain you now have some of the most valuable companies in the entire world in places like China. What stops them from taking all of the value they’ve been able to derive from their over one billion population base, which well capitalizes them, and coming in and competing in the US? The US has not seen so many threats to their industry come from outside the US as opposed to within the US so in that sense I think that’s a whole new set of interesting problems to think about. I’ve actually had encounters with Chinese companies asking if there was some kind of, you know, hidden trick in the way we appear to be opening our market for them to freely come in without any IP barriers. For example, in pairing software and IP and so on and so forth.”

Japan is also the country with the greatest number of foreign priority patent applications at the USPTO. With almost 1.1 million total foreign priority filings and over 389,000 foreign priority filings with the USPTO for utility patents since 2005, Japan is second only to domestic US patent applicants in terms of volume. While quantity does not always mean quality, Japanese filers are also the most successful in front of the USPTO with nearly 78% of patent applications allowed overall and nearly 79% of utility patent applications allowed since 2005.

In 2013, 647,300 industrial design registrations were filed – a 6.4% drop from 2012. The decline in global registrations stems primarily from the slow-down of Chinese manufacturing, which produced 12% fewer registrations than the previous year. After seven years of consecutive growth, 2013’s global registrations of 919,100 designs represents a 3.3% decrease from 2012. In 2013, upwards of three million industrial design registrations were in force.