Joff Wild's article IAM After China Win, Qualcomm Follows Up with A German Injunction suggests China is stepping up its patent enforcement game.
China has been more lax in enforcing patents than the United States until recently. For many years, US courts automatically granted injunctions after a patent was held valid, enforceable, and infringed. 35 U.S.C. §154 suggested that they should be granted given a patent grants the right to exclude others from making, using, offering for sale, or selling the invention in the United States during the patent term.
But that routine grant of injunctions really stopped after EBay v. MercExchange. There the Supreme Court repudiated the Federal Circuit's practice of automatically granting injunctions. It recognized courts should grant injunctions in accordance with equity to prevent violation of patent rights on such terms as the court deems reasonable. 35 U.S.C. § 283. EBay basically set up some hurdles after a patent owner won its case. Going forward the patent owner seeking a permanent injunction would also need to demonstrate it satisfied a four factor test:
(1) that it has suffered an irreparable injury;
(2) that remedies available at law are inadequate to compensate for that injury;
(3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity
is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.
Courts can grant permanent injunctions as part of a final judgment between competitors, but proving the four factors can be a challenge for patent owners when it involves non-competitors in the United States. Even though injunctions are becoming more common in China and Germany it was surprising to see how rapidly a chip designer such as Qualcomm was granted a preliminary injunction (not easy to get in the USA) against the Apple iPhone in China and a permanent injunction in Germany with no injunctive relief in sight in United States. Yes, these events suggest key patent litigation disputes may be decided on the "other side" of the earth.
Copyright © 2018 Robert Moll. All rights reserved.
Showing posts with label China. Show all posts
Showing posts with label China. Show all posts
Sunday, December 23, 2018
Monday, December 10, 2018
CNBC - Apple recovers losses after Chinese court bans sale of most iPhones
The CNBC article Apple recovers losses after Chinese court bans sale of most iPhones tells us Qualcomm was able to get an injunction that bans sale of iPhones in China. A few infringed Qualcomm patents can apparently shut down significant iPhone sales in China. Even if the injunctive relief is overturned this sounds disruptive.
Copyright © 2018 Robert Moll. All rights reserved.
Copyright © 2018 Robert Moll. All rights reserved.
Saturday, November 11, 2017
Renjun Bian - Many Things You Know About Patent Infringement Litigation in China Are Wrong
The conventional wisdom is filing a patent in China is a waste of money, because China is lax in enforcing patent rights especially those of foreign patent owners. Now U.C. Berkeley law student Renjun Bian's article Many Things You Know About Patent Infringement Litigation Are Wrong gives some data that suggests that conventional wisdom is wrong.
Here's the Abstract:
"As the Chinese government continues to stimulate domestic innovation and patent activities via a variety of policies, China has become a world leader in both patent applications and litigation. These major developments have made China an integral venue of international patent protection for inventors and entrepreneurs worldwide.
However, due to the lack of judicial transparency before 2014, westerners had virtually no access to Chinese patent litigation data and knew little about how Chinese courts adjudicated patent cases. Instead, outside observers were left with a variety of impressions and guesses based on the text of Chinese law and the limited number of cases released by the press.
Taking advantage of ongoing judicial reform in China, including mandated public access to all judgments made since January 1, 2014 via a database called China Judgements Online (CJO), this paper analyzes 1,663 patent infringement judgments – all publicly available final patent infringement cases decided by local people’s courts in 2014. Surprisingly, many findings in this paper contradict long-standing beliefs held by westerners about patent enforcement in China.
One prominent example is that foreign patent holders were as likely to litigate as domestic patentholders, and received noticeably better results – higher win rate, injunction rate, and average damages.
Another example is that all plaintiffs won in 80.16% of all patent infringement cases and got permanent injunctions automatically in 90.25% of cases whose courts found patent infringement, indicating stronger patent protection in China than one might expect."
Copyright © 2017 Robert Moll. All rights reserved.
Here's the Abstract:
"As the Chinese government continues to stimulate domestic innovation and patent activities via a variety of policies, China has become a world leader in both patent applications and litigation. These major developments have made China an integral venue of international patent protection for inventors and entrepreneurs worldwide.
However, due to the lack of judicial transparency before 2014, westerners had virtually no access to Chinese patent litigation data and knew little about how Chinese courts adjudicated patent cases. Instead, outside observers were left with a variety of impressions and guesses based on the text of Chinese law and the limited number of cases released by the press.
Taking advantage of ongoing judicial reform in China, including mandated public access to all judgments made since January 1, 2014 via a database called China Judgements Online (CJO), this paper analyzes 1,663 patent infringement judgments – all publicly available final patent infringement cases decided by local people’s courts in 2014. Surprisingly, many findings in this paper contradict long-standing beliefs held by westerners about patent enforcement in China.
One prominent example is that foreign patent holders were as likely to litigate as domestic patentholders, and received noticeably better results – higher win rate, injunction rate, and average damages.
Another example is that all plaintiffs won in 80.16% of all patent infringement cases and got permanent injunctions automatically in 90.25% of cases whose courts found patent infringement, indicating stronger patent protection in China than one might expect."
Copyright © 2017 Robert Moll. All rights reserved.
Friday, December 30, 2016
IP Watchdog - The Four Consequential Patent Trends of 2016 - Brief Comment
In the IP Watchdog article, The Four Consequential Patent Trends of 2016, Steve Brachmann highlights some key trends in the US patent system today.
The article notes that the FTC Report - Patent Assertion Entity and the decline in patent litigation in 2016 discredit the patent troll narrative, but the media is still lagging on the truth. It notes China and the US have patent systems moving in opposite directions given China's decision to open the door to software and business method patenting, and the Federal Circuit has frustrated patent owners on issues arising from the PTAB trials.
My brief comment is Congress might considering addressing these trends in 2017:
Congress may or may not need more patent reform, but it shouldn't amend any patent law based on the false patent troll narrative. For example, Congress should read the FTC report which among other things, debunks the "patent troll" label as prejudicial. Journalists often have tight deadlines that run counter to rigorous fact investigation. The lobbyists and other hired guns help special interests rather than illuminate journalists. We need laws that strengthen the US economy not certain big tech companies.
Instead of being surprised how China is moving forward with software and business method patenting, Congress should amend the language of 35 USC 101 to clarify the patent-eligible standard for software inventions. Allowance of US software applications should not rest on a patent eligibility test that arguably nobody fully understands. Patentability of software related inventions should return to primarily an examination of prior art.
Practitioners can invalidate patents in the USPTO at lower cost than in court, but the Patent Trial and Appeal Board (PTAB) rules currently tilt the procedure in favor of patent challengers. This is a large topic, but one example is PTAB accords claims the broadest reasonable interpretation, a standard premised on an ability to amend claims, but implements rules that make it nearly impossible to amend claims. Congress should level the playing field of the PTAB trials.
Large entities have successful pushed for a weaker US patent system that permits efficient infringement. Thus, a small entity cannot reliably stop misappropriation of its inventions. But a weaker patent system does not discriminate. Large entities that worked so hard to weaken patents are now more vulnerable to free riders who have no real reason to stop infringing.
Copyright © 2016 Robert Moll. All rights reserved.
The article notes that the FTC Report - Patent Assertion Entity and the decline in patent litigation in 2016 discredit the patent troll narrative, but the media is still lagging on the truth. It notes China and the US have patent systems moving in opposite directions given China's decision to open the door to software and business method patenting, and the Federal Circuit has frustrated patent owners on issues arising from the PTAB trials.
My brief comment is Congress might considering addressing these trends in 2017:
Congress may or may not need more patent reform, but it shouldn't amend any patent law based on the false patent troll narrative. For example, Congress should read the FTC report which among other things, debunks the "patent troll" label as prejudicial. Journalists often have tight deadlines that run counter to rigorous fact investigation. The lobbyists and other hired guns help special interests rather than illuminate journalists. We need laws that strengthen the US economy not certain big tech companies.
Instead of being surprised how China is moving forward with software and business method patenting, Congress should amend the language of 35 USC 101 to clarify the patent-eligible standard for software inventions. Allowance of US software applications should not rest on a patent eligibility test that arguably nobody fully understands. Patentability of software related inventions should return to primarily an examination of prior art.
Practitioners can invalidate patents in the USPTO at lower cost than in court, but the Patent Trial and Appeal Board (PTAB) rules currently tilt the procedure in favor of patent challengers. This is a large topic, but one example is PTAB accords claims the broadest reasonable interpretation, a standard premised on an ability to amend claims, but implements rules that make it nearly impossible to amend claims. Congress should level the playing field of the PTAB trials.
Large entities have successful pushed for a weaker US patent system that permits efficient infringement. Thus, a small entity cannot reliably stop misappropriation of its inventions. But a weaker patent system does not discriminate. Large entities that worked so hard to weaken patents are now more vulnerable to free riders who have no real reason to stop infringing.
Copyright © 2016 Robert Moll. All rights reserved.
Friday, December 2, 2016
Bloomberg BNA - China Looks to Boost Protection for Software Patents
Bloomberg BNA published an article China Looks to Boost Protection for Software Patents that is worth reading. Here's Bloomberg BNA:
"A draft revision to China’s patent examination guidelines released late last month will likely make it easier to get software and business method patents.
Other proposed changes to ease the standard for amending granted patent claims should also help patent holders and, especially, patent assertion entities, practitioners say.
The draft guidelines follow developments that some have interpreted as evidence of China’s maturing and improving environment for IP owners. The guidelines are not law but rules for instructing examiners at China’s State Intellectual Property Office (SIPO) on how to properly examine patent applications.
There is no official timeline for when to expect finalized guidelines, though some expect they could come as early as next year."
As stated in the article, "One of the biggest changes in the guidelines confirms that software and business methods are patentable. They seek to address concerns that some examiners have been too cautious in treating all references to business models or computers as red flags that signal unpatentability. A sentence in the draft explains that claims relating to a business method are not excluded from patentability if they contain sufficient technical features.
Meanwhile, another change clarifies that apparatus claims relating to software can contain both hardware and 'program' components. And the draft changed language that some examiners have interpreted as barring nearly all computer program references. The guidelines clarify that inventions relating to 'computer programs per se' are not patentable because those are rules and methods for mental activities."
Copyright © 2016 Robert Moll. All rights reserved.
"A draft revision to China’s patent examination guidelines released late last month will likely make it easier to get software and business method patents.
Other proposed changes to ease the standard for amending granted patent claims should also help patent holders and, especially, patent assertion entities, practitioners say.
The draft guidelines follow developments that some have interpreted as evidence of China’s maturing and improving environment for IP owners. The guidelines are not law but rules for instructing examiners at China’s State Intellectual Property Office (SIPO) on how to properly examine patent applications.
There is no official timeline for when to expect finalized guidelines, though some expect they could come as early as next year."
As stated in the article, "One of the biggest changes in the guidelines confirms that software and business methods are patentable. They seek to address concerns that some examiners have been too cautious in treating all references to business models or computers as red flags that signal unpatentability. A sentence in the draft explains that claims relating to a business method are not excluded from patentability if they contain sufficient technical features.
Meanwhile, another change clarifies that apparatus claims relating to software can contain both hardware and 'program' components. And the draft changed language that some examiners have interpreted as barring nearly all computer program references. The guidelines clarify that inventions relating to 'computer programs per se' are not patentable because those are rules and methods for mental activities."
Copyright © 2016 Robert Moll. All rights reserved.
Tuesday, June 9, 2015
USPTO - Progress on Intellectual Property (IP) Rights
In a blog post, Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee addresses IP rights issues in China:
"It was clear during my recent trip to Beijing, China, that the timing for the visit could not have been better. China is at a crossroads in its economic evolution, and as such governmental officials are considering changes to every aspect of intellectual property law. After a series of high-level meetings, what was clear to both me and my China team—led by Senior Counsel Mark Cohen—was an increased recognition in China of the value of IP to the nation’s economic ambitions. It is through a mutual respect for the importance of IP rights and protections that U.S. companies will be able to fully and successfully compete in the Chinese market.
From May 25th to the 27th, I met with senior leaders across China’s IP landscape, starting with Vice Premier Wang Yang. The Vice Premier stated quite clearly that China aspires to be an innovation-based economy. China is no longer content with manufacturing goods invented by others, he and other leaders said, as the country aims to move up the economic value chain and compete in the global marketplace of inventors. As such, we were told that China recognizes that improving IP rights and enforcement is not just in the interest of the U.S., it is also in the interest of China. We heard this not just from the Vice Premier but in meetings with China’s State Intellectual Property Office (SIPO), the Ministry of Commerce (MofCOM), the State Administration for Industry and Commerce (SAIC), the National People’s Congress (NPC), and the Supreme People’s Court (SPC).
Much progress needs to be made in China in all forms of IP law, from patents and trademarks, to copyrights and trade secrets. I made clear in my meetings that we seek to work with China to develop a market-oriented, business-driven innovation environment that allows businesses the freedom to license and contract as conditions warrant. Those businesses need to be free from governmental interference in an environment comprising transparency and rule of law. Already assisting U.S. businesses in China are three USPTO IP attachés, including Beijing-based Joel Blank, who was part of my delegation.
We discussed with our counterparts China’s new IP specialized courts, offering input on how to ensure this reform guarantees justice for IP owners. We pushed for reforms to ensure effective protection and enforcement of trade secrets that would include revisions to its criminal law. We emphasized the need for increased protection for copyright and trademark owners while recognizing the importance of reforms already enacted, offering feedback on further reform efforts being discussed in China on those issues. And we did so, in each case, by emphasizing how these changes would be mutually beneficial for both countries.
I also had the unique opportunity to meet with U.S. industry representatives while in Beijing. It’s invaluable to hear about the IP challenges and issues faced by those “on the ground,” and to discuss the ways in which the U.S. government can help them.
This visit built on a successful trip by Deputy Director Russell Slifer to the IP5 Heads meeting in Suzhou, China, a week earlier. Along with signing a Memoranda of Cooperation with the Korean IP Office and the Japanese Patent Office, Deputy Director Slifer met with SIPO Commissioner Shen Changyu. Deputy Director Slifer and I had just hosted Commissioner Shen at the USPTO in April, and I had a productive meeting with him on this recent trip.
During that meeting, I signed a Memorandum of Understanding with Commissioner Shen that commits the USPTO and SIPO to a general framework of bilateral cooperation. We both committed to educational programs on how best to protect patents in each country’s legal system, and could organize activities related to USPTO programs such as the Patent Prosecution Highway and the Global Dossier initiative. SIPO and the USPTO process more patent applications than any of the other IP offices in the world, and I am encouraged by the furthering of our agencies’ collaboration.
As evidence of this collaboration, SIPO also participated in a cause close to my heart. On May 25, I gave a speech at Columbia University's East Asia Center in Beijing to an audience of 60 people, mostly women between the ages of 25 and 40, on the importance of women in STEM (science, technology, engineering, and mathematics) fields. A representative from SIPO echoed my remarks, and emphasized the link between a strong STEM education system and an innovative society.
Engagement with SIPO—and Chinese policymakers more broadly—will continue later this year with the next meeting of the U.S.-China Joint Commission on Trade and Commerce that I co-chair with Deputy U.S. Trade Representative Robert Holleyman. This trip helped lay the groundwork for that very important bilateral trade dialogue, in which IP is a top priority. We’re moving forward on plans for that meeting with a commitment to continue to encourage China’s evolution to an innovative economy that increasingly respects and promotes IP rights."
Copyright © 2015 Robert Moll. All rights reserved.
"It was clear during my recent trip to Beijing, China, that the timing for the visit could not have been better. China is at a crossroads in its economic evolution, and as such governmental officials are considering changes to every aspect of intellectual property law. After a series of high-level meetings, what was clear to both me and my China team—led by Senior Counsel Mark Cohen—was an increased recognition in China of the value of IP to the nation’s economic ambitions. It is through a mutual respect for the importance of IP rights and protections that U.S. companies will be able to fully and successfully compete in the Chinese market.
From May 25th to the 27th, I met with senior leaders across China’s IP landscape, starting with Vice Premier Wang Yang. The Vice Premier stated quite clearly that China aspires to be an innovation-based economy. China is no longer content with manufacturing goods invented by others, he and other leaders said, as the country aims to move up the economic value chain and compete in the global marketplace of inventors. As such, we were told that China recognizes that improving IP rights and enforcement is not just in the interest of the U.S., it is also in the interest of China. We heard this not just from the Vice Premier but in meetings with China’s State Intellectual Property Office (SIPO), the Ministry of Commerce (MofCOM), the State Administration for Industry and Commerce (SAIC), the National People’s Congress (NPC), and the Supreme People’s Court (SPC).
Much progress needs to be made in China in all forms of IP law, from patents and trademarks, to copyrights and trade secrets. I made clear in my meetings that we seek to work with China to develop a market-oriented, business-driven innovation environment that allows businesses the freedom to license and contract as conditions warrant. Those businesses need to be free from governmental interference in an environment comprising transparency and rule of law. Already assisting U.S. businesses in China are three USPTO IP attachés, including Beijing-based Joel Blank, who was part of my delegation.
We discussed with our counterparts China’s new IP specialized courts, offering input on how to ensure this reform guarantees justice for IP owners. We pushed for reforms to ensure effective protection and enforcement of trade secrets that would include revisions to its criminal law. We emphasized the need for increased protection for copyright and trademark owners while recognizing the importance of reforms already enacted, offering feedback on further reform efforts being discussed in China on those issues. And we did so, in each case, by emphasizing how these changes would be mutually beneficial for both countries.
I also had the unique opportunity to meet with U.S. industry representatives while in Beijing. It’s invaluable to hear about the IP challenges and issues faced by those “on the ground,” and to discuss the ways in which the U.S. government can help them.
This visit built on a successful trip by Deputy Director Russell Slifer to the IP5 Heads meeting in Suzhou, China, a week earlier. Along with signing a Memoranda of Cooperation with the Korean IP Office and the Japanese Patent Office, Deputy Director Slifer met with SIPO Commissioner Shen Changyu. Deputy Director Slifer and I had just hosted Commissioner Shen at the USPTO in April, and I had a productive meeting with him on this recent trip.
During that meeting, I signed a Memorandum of Understanding with Commissioner Shen that commits the USPTO and SIPO to a general framework of bilateral cooperation. We both committed to educational programs on how best to protect patents in each country’s legal system, and could organize activities related to USPTO programs such as the Patent Prosecution Highway and the Global Dossier initiative. SIPO and the USPTO process more patent applications than any of the other IP offices in the world, and I am encouraged by the furthering of our agencies’ collaboration.
As evidence of this collaboration, SIPO also participated in a cause close to my heart. On May 25, I gave a speech at Columbia University's East Asia Center in Beijing to an audience of 60 people, mostly women between the ages of 25 and 40, on the importance of women in STEM (science, technology, engineering, and mathematics) fields. A representative from SIPO echoed my remarks, and emphasized the link between a strong STEM education system and an innovative society.
Engagement with SIPO—and Chinese policymakers more broadly—will continue later this year with the next meeting of the U.S.-China Joint Commission on Trade and Commerce that I co-chair with Deputy U.S. Trade Representative Robert Holleyman. This trip helped lay the groundwork for that very important bilateral trade dialogue, in which IP is a top priority. We’re moving forward on plans for that meeting with a commitment to continue to encourage China’s evolution to an innovative economy that increasingly respects and promotes IP rights."
Copyright © 2015 Robert Moll. All rights reserved.
Sunday, January 4, 2015
Reuters - China aiming to triple patents by 2020
Tonight, I suggest reading China aiming to triple patents by 2020.
Reuters tells us "China is targeting 14 invention patents per 10,000 habitants by 2020 compared to four in 2013." Note China published 629,612 patents in 2013, which is 200,00 more than the USA.
China Central People's government says it wants to be a bigger player in tech so aims to triple the number of patents it files by 2020 as Beijing looks to boost the country's high-tech economy in areas, reduce the length of the review process, and boost IP protection to address foreign firms contentions that IP law in China sometimes favors local players.
Copyright © 2015 Robert Moll. All rights reserved.
Reuters tells us "China is targeting 14 invention patents per 10,000 habitants by 2020 compared to four in 2013." Note China published 629,612 patents in 2013, which is 200,00 more than the USA.
China Central People's government says it wants to be a bigger player in tech so aims to triple the number of patents it files by 2020 as Beijing looks to boost the country's high-tech economy in areas, reduce the length of the review process, and boost IP protection to address foreign firms contentions that IP law in China sometimes favors local players.
Copyright © 2015 Robert Moll. All rights reserved.
Thursday, December 11, 2014
World’s Five Largest Intellectual Property Offices Release Annual IP5 Statistics Report
The USPTO announced the following:
"A coalition of the world’s five largest patent offices – the IP5 – recently announced the release of the 2013 IP5 Statistics Report. The Report has been designed to facilitate an understanding of operations and patent procedures among the Offices, while providing a means for gauging inventive activity, technology flow, and comparing procedures. The IP5 is comprised of the U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), and the State Intellectual Property Office of the People’s Republic of China (SIPO).
According to the Report’s Executive Summary, the IP5 Offices granted almost 957,000 patents in 2013 – an increase of 4 percent compared to 2012. In addition, 2.1 million patent applications were filed in the IP5 Offices in 2013, which represents an 11 percent increase over the previous year.
In addition to the report itself, the IP5 offices also provide detailed statistical data sheets for historical numbers of patent application filings going back to the 1980s and patent grants broken down by International Patent Classification (IPC) codes and country of origin. The additional statistical data also includes an office by office comparison of fees associated with the patent process, including those associated with services by the World Intellectual Property Organization (WIPO).
The IP5 Offices, which together handle about 89 percent of the world’s patent applications, began meeting in 2007. They have since worked together to explore ways to further optimize joint efforts to improve quality and efficiency of the examination process and to explore and optimize work sharing opportunities between the Offices.
The IP5 Statistics Report was first released in 1983 as a project of the Trilateral Cooperation –EPO, JPO, and USPTO. In 2008, KIPO joined the effort and the first Four Office Statistics Report was produced. The 2011 IP5 Statistics Report represented a milestone in IP5 cooperation, encompassing the full cooperation of all the IP5 Offices including SIPO. The IP5 Offices intends to continue holding discussions on statistics and improving IP5 cooperation for next year’s Statistics Report."
Copyright © 2014 Robert Moll. All rights reserved.
"A coalition of the world’s five largest patent offices – the IP5 – recently announced the release of the 2013 IP5 Statistics Report. The Report has been designed to facilitate an understanding of operations and patent procedures among the Offices, while providing a means for gauging inventive activity, technology flow, and comparing procedures. The IP5 is comprised of the U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), and the State Intellectual Property Office of the People’s Republic of China (SIPO).
According to the Report’s Executive Summary, the IP5 Offices granted almost 957,000 patents in 2013 – an increase of 4 percent compared to 2012. In addition, 2.1 million patent applications were filed in the IP5 Offices in 2013, which represents an 11 percent increase over the previous year.
In addition to the report itself, the IP5 offices also provide detailed statistical data sheets for historical numbers of patent application filings going back to the 1980s and patent grants broken down by International Patent Classification (IPC) codes and country of origin. The additional statistical data also includes an office by office comparison of fees associated with the patent process, including those associated with services by the World Intellectual Property Organization (WIPO).
The IP5 Offices, which together handle about 89 percent of the world’s patent applications, began meeting in 2007. They have since worked together to explore ways to further optimize joint efforts to improve quality and efficiency of the examination process and to explore and optimize work sharing opportunities between the Offices.
The IP5 Statistics Report was first released in 1983 as a project of the Trilateral Cooperation –EPO, JPO, and USPTO. In 2008, KIPO joined the effort and the first Four Office Statistics Report was produced. The 2011 IP5 Statistics Report represented a milestone in IP5 cooperation, encompassing the full cooperation of all the IP5 Offices including SIPO. The IP5 Offices intends to continue holding discussions on statistics and improving IP5 cooperation for next year’s Statistics Report."
Copyright © 2014 Robert Moll. All rights reserved.
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