Archive for July, 2011


Subtle Corruption? The Weakening of US Patent Rights

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One of the troubling trends in US patent law, a trend I first heard about roughly a decade ago in a course “Drafting and Crafting Winning Patents” from Patent Resources Group, was the tendency for courts in patent litigation to twist the claims to limit their scope. Among the many examples of courts finding language or lack of language in the specification to import unintended and often questionable limitations into the claims is a 2011 case, Retractable Technologies, Inc. v. Becton, Dickinson & Co.. It took creative mental gymnastics by the court to rule that the “body” of the claimed syringe must not read on two-piece bodies, contrary to logic and evidence within the claims themselves. See the response of IP Watchdog to see how this decision may contradict fundamentals of established patent law. The Patent Prospector blog offers this view:

Somewhat subtlety, but most assuredly corruptly, the courts are on a continuing crusade to limit patent protection. In the past four years, the capriciously subjective Obzilla (KSR) has trampled many patents, where an objective evidentiary standard would have left them standing. In this episode, Retractable Technologies v. Becton, the crusade against patent enforcement continues, but from a different angle, with the CAFC distorting well-settled claim construction precedent to squeeze the scope of claims.

The courts seem increasingly ill-disposed toward protecting property and intellectual property rights, especially those of individuals and small companies lacking political clout. Is that due to corruption or just the twisted anti-property (well, anti-other-people’s-property) ideological bent that many of our leading universities impose on students? To be fair, many large companies also bemoan US patent law trends where intellectual property is increasingly taxed and stalled (e.g., through high costs and delay at the USPTO, and the siphoning of patent fees by Congress to pay for their excesses elsewhere), where claim scope is being limited, and where the capricious uncertainties and cost of litigation are ominous. To revive the US economy, there really is a need to strengthen innovation by strengthening and accelerating our patent system and strengthening, not diluting, property rights.

Meanwhile, here in China, there are serious efforts to strengthen enforcement of IP rights, to encourage patent pursuit (e.g., with generous tax incentives and some special incentives that local governments may add in some areas), and to facilitate enforcement. There is a rush in China to create IP and it will have profound long-term effects in terms of global competitiveness. I think that China will become the technology leader of the world and the IP leader, and the U.S. will pay dearly in the end–royalties and more. The U.S. needs to regain its IP and innovation momentum and abandon capricious judicial changing of the rules at the expense of innovators.

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China Gets Serious about Intellectual Property

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Many people in the West think of China as a copier exploiting the IP of the West and generally ignoring IP rights. In reality, China, the nation where I now live, has made steady and rapid progress in building an IP system and in enforcing and respecting IP rights. Companies are increasingly able to protect their IP in China and have it enforced successfully. Successful experiences in enforcing IP has led some Chinese consumer products companies, for example, to become much more serious about protecting their innovations in China and beyond.

Chinese companies are now racing to create strong patent portfolios not only in China but overseas as well. China’s tax incentives contribute to this as does its increasingly strong patent system, and the strong investment in R&D in this nation and the growing technical competence and creativity of China has led to a serious need to protect Chinese IP from infringement by the West and others. China is becoming the world’s leader in filing patents. In 2011, China is expected to overtake Japan and the United States for the #1 spot as top patent filer. They appear to be leading the world in terms of the number of patent law suits being pursued in Chinese courts, with significant awards being made that should encourage companies to pay more attention to patents here. In many areas, Chinese innovators are leading the world and are backing up their work with aggressive international patent filings. My own study of biofuels patents, for example, shows that China is becoming the world’s top source of IP related to biofuels and other plant-based bioproducts. Chinese universities are filing patents in many areas and have even had success in courts enforcing them. China on all fronts appears to be accelerating its move toward being a source of global IP and innovation.

The July 13, 2011 issue of the China Daily that I picked up last week illustrates the growing importance of IP. Page 5 had a story, “Courts Do More for IPR [Intellectual Property Rights] Protection.” The article reported that the Chinese government is seeking to learn from experience in the West to further improve and accelerate its legal system to strengthen IP protection. I should note, though, that Chinese courts already have a reputation for being much faster than Western courts, so I hope they don’t learn the slow part from the West. The article also reported that over 9,000 arrests have been made in the past 9-months in efforts to crackdown on piracy and other violations of IP rights. Nearly 13,000 underground factories have been closed in another campaign and nearly 5,000 gangs selling illegal goods have been broken up. In this 9-month period, 2,492 IP cases were brought to Chinese courts and 1,985 cases were adjudicated.

In the same issue, page 17 had a section called “ipscene” with IP-related news stories from around China. There were reports on China’s proprietary subway noise reduction technology being installed on Beijing’s new line 10; on the rapid growth of China’s LED industry; on the advances in diesel design from Yuchai Group which now has over 600 patents and has become a leading force in “green power”; and on a low-cost solar water heater being patented by inventors from Jinan. There was also a report on prison terms and fines for producers of counterfeit liquor. On the same page was a half-page article on grassroots inventions at a national innovation exhibit, and an article about educating Chinese children to boost innovation.

That’s a lot of IP and innovation content for a popular newspaper, and reflects the importance of these topics in China.

As the West continues to make patents more difficult to obtain and less valuable, frustrating innovators and contributing to innovation fatigue, China is doing the opposite. They are out to build a stronger IP system and make IP more valuable. They are encouraging the pursuit of IP protection and the creation of IP, and will continue to surpass the West in many measures. The pace of innovation in China continues to accelerate. Now companies, such as the one I work for, will increasingly be concerned not with copying what the West has, but in preventing the West from copying what is created here. There are further ironies to be revealed in this adventure.

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