Posts Tagged: "Chinese Patent Law"

A Comparative Look at Patent Subject Matter Eligibility Standards: China Versus the United States

Much has happened to the patent subject matter eligibility standard in the U.S. since Mayo. On April 27, 2020, Judge Paul Michel and John Battaglia published an excellent article on IPWatchdog analyzing the U.S. Section 101 patent subject matter eligibility jurisprudence. In that article, Judge Michel and Battaglia reminded judges and practitioners to reference “the more-favorable foreign patent laws on the patent eligibility for diagnostic testing, business methods and software … in countries such as England, China, or the European Union … to inform such a judicially created ineligibility standard, as opposed to the U.S. Constitution or a federal statute.”  Here, we take a quick comparative look at the current patent subject matter eligibility standard in China.

Apple Removes ‘Minor Functionality’ from iPhone in Response to Chinese Injunction

On December 10, 2018, a Chinese court granted Qualcomm an injunction against Apple that stops sales and imports of most iPhones in China.  On December 12, Apple announced that as a result of the Chinese injunction, “early next week we will deliver a software update for iPhone users in China addressing the minor functionality of the two patents at issue in the…

A Journey Through the Chinese Patent System: The differences in how patent rights are treated

The trade dispute between the US and China started with a US accusation of intellectual property theft on the part of China.  Is China really “stealing” intellectual property?  I’m not so sure.  Perhaps the Chinese are stealing trade secrets, and if parties are engaged in such activities they should be punished, but there is a lot of taking that has been legitimized – even authorized – by the Congress and the Supreme Court in recent years.  U.S. patent law is today enabling foreign corporations, including Chinese corporations, to legitimately take intellectual property developed in the U.S.  That is not theft.  It’s just business.  And far more damage is being done to the U.S. as the result of legalized appropriation of patented innovations than could ever be done by the theft of trade secrets.

Navigating the Patent Landscape in China

The Chinese intellectual property legal system has matured rapidly. Just 40 years ago China did not have a patent system, and today the country is aggressively using patent policy to create an innovation pathway… Meanwhile, China is pursuing what they refer to as the Made in China 2025 initiative.

China understands link between incentivization and innovation, but U.S. still has advantages

The Chinese have absolutely without question focused hugely on patents over the last 10 to 15 years and over the last five years there’s been an absolute explosion in strategic thought around patents. It’s really unparalleled anywhere else in the world. It’s extraordinary… I think the Chinese understand the very close link there is between patents and the encouragement and incentivization of innovation and invention in a way that perhaps we’ve lost sight of in the West to an extent. In the U.S. you get the feeling that over the last three or four years people felt they could do without patents. I don’t think the Chinese see it that way.

Increases in Innovation, Patent Boom Leads to Development in China

The patent boom China has been experiencing is easy to explain. China as a country has been unwavering in its support for domestic patent production in recent years. Indeed, the Chinese government has been actively encouraging not only increased innovation that makes it more likely there will be patentable innovations, but that government has been aggressively incentivizing increased patent filings. Incentives include subsidizing patent filing fees, providing rewards for patent filings, and tax credits that are tied to patent output. In many ways, China’s innovation economy is a near photo-negative of the current iteration of the U.S. patent system.

WIPO Stats on Patent Application Filings Shows China Continuing to Lead the World

Globally, a total of 3.1 million patent applications were filed with patent offices worldwide during 2016, an increase of 8.3 percent over 2015’s filing numbers and the seventh straight year in which saw a year-over-year increase in global patent application filings. About 1.3 million patent applications were filed with China’s State Intellectual Property Office (SIPO), a record number of patent applications received by any patent office in a single year. China’s 2016 patent application total is greater than the combined total of patent applications filed in 2016 in the United States (605,571), Japan (318,381), South Korea (208,830) and Europe (159,358). These five jurisdictions accounted for 84 percent of all patent applications filed during 2016.

Challenges for Managing Chinese Patent Prosecution: Anything More Than Lost in Translation?

If you are an in-house counsel at a U.S. technology company, managing its global patent portfolio with a potentially significant exposure in China, you face some special challenges trying to effectively and efficiently manage the Chinese patent prosecution through your Chinese IP firms. You might assume that these challenges would be caused by some undefinable “Chinese” element. You already knew how to manage U.S. prosecution, performed by the outside U.S. law firms, and in theory you can apply that learned expertise to managing the process in China. But this is not U.S.-style patent prosecution in another place. The working language will be Chinese in addition to English, the communications will generally be over long distances, 12 to 15 time zones away, and you will have to deal with significant differences in laws, practices, and cultures. This article provides a roadmap and tips for making this process productive and successful.

Why NPEs are necessary for China to dominate its domestic chip industry

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.

Revised Chinese patent guidelines mean better prospects for software, business methods than U.S.

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.

China releases new proposed amendments to patent laws

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.

Doing Business in China: Understanding China’s Patent System

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.

Patent Quality in China

As a result of filing the world’s highest number of patent applications, China is often attacked for trading in quality for quantity. However, Michael Lin of Marks&Clerk explains that a better understanding of the State Intellectual Property Office (SIPO) and the Chinese patent system shows that patent quality is in fact, not declining but increasing.

China’s Great Leap Forward in Patents

On March 28, Apple Inc. appeared in court in Shanghai to defend charges that Siri, its voice-recognition, personal-assistant software, allegedly infringes a Chinese patent. The plaintiff and owner of the patent, Zhizhen Internet Technology Co., claims its version of the software has over 100 million users in China and is requesting the court to ban all manufacturing or sales of Apple’s product in China. This was not the first time Apple faced patent infringement claims in China. Last summer a Taiwanese man sued the company in China for alleged infringement relating to its Facetime technology.

Key Considerations for Patent Strategies in China

As the second largest economy in the world, China is emerging to the center of the world’s economic stage. This emergence has been accompanied by constant changes in its legal and economic sectors. The intellectual property sector also has witnessed numerous recent changes. There have been significant new advances in China’s national innovation policies. New trends in Chinese patent filings have emerged. A growing number of Chinese companies are creating their own IP and increasingly filing infringement suits against foreign companies and their local competitors in China. China’s third patent law amendment has materially changed patent practice and procedures in that country.