Tag Archives: China

12-fold increase in China’s U.S. trademark apps; many are said to be fraudulent and improperly filed

September 4, 2018 by Bruce Berman 1 Comment

Cash subsidies are among the incentives fueling a dramatic rise in U.S. trademark applications by Chinese filers. Thousands are said to be  improperly filed and unlikely to be granted. 

In a national effort to increase IP ownership China is paying companies and individuals, some of them prisoners, as much as the equivalent of $800 to register a trademark in the U.S.

“The U.S officials say many China filings show a pattern of suspicious claims about the goods in question and the qualifications of the attorneys handling them,” reports the Wall Street Journal.

China may be attempting to “disrupt” the U.S. system by flooding it with huge numbers of applications, making it potentially more difficult for business to obtain the marks they desire, especially those that may be associated with products that are sold in e-commerce.

Mark Cohen, UC Berkeley law professor and former USPTO expert on China told IP CloseUp that he did not believe there is a concerted effort to undermine the U.S. trademark system.

“China is metrics-driven, numbers-oriented society,” said Cohen, who is fluent in Chinese. “It wants to achieve government-established goals and will resort to incentives to achieve them. This planned approach can lead to the kind of spikes we have been seeing in trademark applications. The ultimate impact is unclear.”

In addition to paying cash incentives, China has been known, says Professor Cohen, to award tenure, defer income taxes and reduce sentences of prisoners who obtain marks. Similar motivations have been known to exist in the patent space, where China is a leading U.S. filer and number two globally. If the pattern continues, it will soon be number one in both trademarks and patents.

Numbers Game

This rapid rise does not necessarily lead to high quality IP rights or to appropriate use of them. But IP does apparently amount to something of a numbers came to China.

Cohen believes that many of the filers are small businesses selling online goods such as phone chargers and cheap clothing. Whether they are every in a position to enforce their marks, if infringed, remains to be seen.

Representing a number of Chinese trademark filers are foreign attorneys who are not licensed to practice in the U.S., which violates application rules.

These payments by the Chinese government amount to nearly $800 per US trademark registration that is obtained (a potential profit per trademark of $525 after filing fees), reports trademark attorney Josh Groben.

Full-time Job

“Given that the median monthly income for a Chinese citizen is around $1,000,” says Groben, “the government payments make it possible for someone in China to have a full-time income by registering just two US trademarks per month.”

The U.S. received more than 50,000 applications from China in the year through September 2017, accounting for 8.5% of all trademark filings.

It is difficult to know how aggressively legitimate Chinese trademark holders will enforce their rights against infringers. In the U.S. complete failure to enforce will lead to a weakening of an owner’s marks, loss of distinctiveness over time and potential forfeiture of certain available remedies.

Image source: creekmorelaw.com; lexology.com

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Can the U.S. compete with China without a focused innovation policy?

May 29, 2018 by Bruce Berman 0 Comments

More nations today have an innovation policy than do not – that is except for the U.S. 

The U.S. not only has no centralized innovation and intellectual property policy, it has no real strategy for making IP rights more meaningful and American businesses more competitive in the wake of initiatives from China.

Some believe it is not the job of policymakers to tinker with free-markets or favor certain industries. Well, that may have worked in the past, but with China committed to dominating global innovation – and with unlimited capital – the U.S. must reexamine its strategies.

What it is not supposed to do is assume that it is business as usual.

The United States has a tendency to repeat past mistakes, such as in the case of so-called “Japan, Inc.,” which devastated the auto and electronics industries with more advanced products. It is currently contending with China, which has approximately ten times the population of Japan and has quadrupled its investment in technology over the past decade.

“US innovation policy: Time for a makeover,” a fresh take on dealing with competition in the Intangible Investor, can be found in the July IAM magazine, out this week, here.

Innovation policy in the United States is mostly a series of suggested strategies and directives from several government agencies and industry organisations primarily designed to address foreign IP infringement (i.e., theft). It is often tied to science and economic policy, and is typically reactive – not proactive.

“Better innovation policy not only permits established industries to compete,” says the Intangible Investor, “it facilitates success for the next generation of inventors, authors, designers and software developers. It also helps to supply context for a confused and wary public susceptible to false media narratives – intellectual property is not the enemy, nor are rights holders and lawyers.”

Enforcement is Not Policy

Trump’s anger about China IP violations, justified or not, does not constitute an innovation policy. Innovation policy is not just about enforcement or supporting the science, technology, engineering and math (STEM) curriculum for the next generation of inventors. It is about understanding the current economic and political context and responding as a nation.

“The FAANGs, and others, who dominate the competition and monetize their customers’ information, often without permission, realize they are increasingly symbols of bad business behavior,” Bruce Berman wrote recently in IP Watchdog. “The heat they feel from regulators in Europe and the U.S. will continue to rise.

“IP infringement will come to be seen as an increasingly important part of their bad behavior. The timing is perfect for them to step back and step up and show the leadership they heretofore have ignored regarding IP rights. Movement toward a responsible IP middle ground – a less entrenched position that recognizes others’ rights and actively conveys a greater willingness to share successes, not only defend them, will help to inform a meaningful IP policy.”

Quick-Reading Guide

For further background on U.S. innovation policy, read a timely and insightful perspective on U.S. innovation policy from James Goh, a young Wharton student from Singapore, “Primer: Innovation Policy in the United States.” 

For a linked quick-reading list about innovation and IP policy from the Center for IP Understanding, go to page 4.

Image source: q3research.com; breakinggap.com

 

 

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China’s growth in European patent apps was three times the U.S. in 2017

March 13, 2018 by Bruce Berman 0 Comments

The European Patent Office (EPO) 2017 annual report, recently published, revealed several surprising patent filing trends, including the rapid growth of China .

The People’s Republic of China filed 16.6% more applications last year than in 2016, three times more than the U.S., which filed 5.8% more.

The five most active patent filing companies were Huawei (China), Siemens (Germany), LG (Korea), Samsung (Korea) and Qualcomm (U.S.).

The U.S. comprised 26% of all European applications submitted in 2017; Japan 13%. German was the lead European filer with 15% of those coming from Europe and about 7% overall.

2017 European Patent Office Annual Report

Infographic with highlights of the EPO Annual Report 2017

 

After European patent filings dropped slightly in 2016 from 2015, they were up overall by 3.9% in 2017.

Top fields were Medical Technology, up 6.2%, and Digital Communication, up 5.7%. Transport was down 4.2%.

SMEs, individual inventors, universities and research institutions, comprised 31% of applications; larger enterprises 69%. Grants were up 10.1%. Among European nations, Denmark experience the greatest application growth, 13.1%

For the full 2017 EPO Annual Report, go here.

Image source: epo.org 

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China says it leads the U.S. in blockchain patents and investment

March 7, 2018 by Bruce Berman 1 Comment

While China is no fan of bitcoin mining – it has moved to close mining operations – it is actively pursuing block chain patents, and is touting its leadership over the U.S.

China is the leading country for blockchain patents with Alibaba and PBOC on top, claims TechNode, a Chinese IP publication that partners with TechCrunch. Blockchain is a shared digital ledger that facilitates transactions, but whose practical application has yet to be determined. A wide range of U.S. financial institutions and technology companies are interested in blockchain, as well financial technology startups, many of whom have high valuations.

Out of the top 100 companies, reports TechNode citing Chinese data, 49 were Chinese, 23 from the US (see below for table of top 100 rankings). It is unclear if the leadership is in U.S. or China-issued patents, or both.

“An increasing number of companies in China are seeking ways to patent blockchain-related inventions, an effort that is in line with the Chinese government’s agenda to push forward with FinTech applications,” reports CoinDesk.

As reported by CoinDesk previously, major financial institutions, namely Bank of China, have already weighed in on issues such as blockchain scaling. (See “China’s Biggest Political Event Sees Blockchain Praise“)

China Blockchain Growth Exceeds the U.S.

IPRdaily, a Chinese language “integrated services organization focusing on new media for intellectual property and is committed to building the most influential IP cooperation platform in the world,” follows blockchain developments.

A report from IPRdaily – which is readily translated on Google Chrome browser – shows that blockchain financing growth in China far exceeds the United States, leading the world. The statistics show that as of December 17, 2017, the global total market capitalization of digital assets has reached 600 billion US dollars, compared with only 17.7 billion at the end of 2016. In less than a year, an increase of nearly 3300%.

Image source: iprdaily.com; technode.com

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44% of top U.S. patentees for 2017 are U.S. companies; 50% are Asian

January 16, 2018 by Bruce Berman 0 Comments

Many companies received more U.S. patents in 2017; IBM, the perennial leader, was number one for the 25th year. However, there were some notable declines in patent grants.

Canon, Qualcomm and Google were down 10%, 9% and 13% respectively. It is difficult to determine if it is as a result of poor company performance or a shift toward higher quality. Toshiba 20%, Philips 15% and Brother Industries 24%. The grant results were provided by IFI Claims. They also were reported in Law 360. Facebook at number 50 was up 49%, but on a much lower base; Toyota was up 36%, an indication that the automobile companies may be positioning themselves in autonomous vehicles and batteries for electric cars.

(Click on image for the entire list or go to IFI Claims at the link above.)

What does it mean?

Interpreting this data is not simple. Clearly, more is not necessarily better, and some patent recipients, like IBM, up 12% in 2017, frequently do not hold their grants to term. (Samsung, the largest U.S. patent holder, is a much larger active holder than IBM.)

But being able to afford patents and obtaining them with a purpose is typically a positive among information technology companies. Only 22 of the top 50 U.S. patent recipients are U.S. companies, down from a decade or more ago. Fifteen are Japanese, five Korean and four Chinese. (One is from Taiwan.) European businesses accounted for four companies on the 2017 list – the same as the number as China without Taiwan, and one fewer than Korea.

Image source: Law360.com; IFI Claims

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Up to $600 billion in U.S. IP is stolen annually by foreigners, says report

June 1, 2017 by Bruce Berman 0 Comments

An IP Commission study finds that foreign sources, especially China, are responsible for the bulk U.S. theft.

Counterfeit goods, pirated software, and theft of trade secrets together represent a “systematic threat” to the US economy of between $225 billion and $600 billion annually, according to the findings of a 2017 research report from the bi-partisan IP Commission, The Theft of American Intellectual Property: Reassessments of the Challenge and United States Policy.

The massive theft of American IP—from companies and universities across the country, from U.S. labs to defense contractors, from banks to software companies—threatens the nation’s security, says the report.

The research, and update of a 2013 report, is the work of the bi-partisan IP Commission and was published by the National Bureau of Asian Research (NBR).  NBR conducts advanced independent research on strategic, political, economic and other issues affecting U.S. relations with Asia, including China and Russia.

The Intangible Investor in June’s IAM features a full perspective on the report, “Foreign sources responsible for most IP theft.” Subscribers can find a copy here.

Pioneering Research

Kudos to the IP Commission for establishing a beachhead in the global war to combat IP theft and cyber crime. Its pioneering research provides American and other lawmakers, businesses, investors and the public, with data about IP infringement that are cannot be ignored.

However, the report falls short. Identifying and stopping infringement, including cyber-espionage, should not be restricted to sources outside of the U.S.  The IP Commission’s research zeros in on foreign counterfeit, trade secret and copyright violations. It does not account for increasing domestic patent infringement and copyright abuses, which have profoundly affected the software, recording and other industries, and impacted U.S. jobs.

To be fair, this IP Commission’s focus is foreign IP threats, and it is a daunting task to estimate the financial impact of domestic invention theft on U.S. businesses – not just what gets reported in the press about settlements and licenses.

But speaking to a range of IP attorneys and holders, it becomes clear that much IP abuse comes from domestic IT businesses, Internet providers, streaming services, individuals and others that know they are unlikely to be caught infringing rights or will have to pay for a license. By the IP Commissions own admission, IP theft is less benign than it might appear.

The theft of American IP is not just the ‘greatest transfer of wealth in human history,’ as General Keith Alexander put it; IP theft undercuts the primary competitive advantage of American business—the capacity for innovation.

Inspiration and a Challenge

The IP Commission’s timely report is a challenge to IP holders, and lawmakers alike who are concerned about innovation and commerce. It is a call to examine the source, type, and level of domestic IP rights theft, including patents, on SMEs, inventors, and universities, and how they affect the economy now and are likely to in the future.

The full 24-page update, The Theft of American Intellectual Property: Reassessments of the Challenge of the United States Policy, is well worth reading. Visit  www.ipcommission.org.

The original 2013 report, Report of the Commission on the Theft of American Intellectual Property, is also available and useful for comparison. 

Image source: ipcommission.org; linkedin.com

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Experts: Void from U.S. patent “train wreck” is being filled by China’s patent system

January 18, 2017 by Bruce Berman 1 Comment

In a few short years China’s patent system has gone from an IP rights wannabe to one of the most responsive and patent-friendly systems in the world.

Leading U.S. IP experts say that underlying this rapid evolution is a desire for China to become a science and technology powerhouse, with the ability to create new and formidable industries that employ many of its 1.4 billion people.

“China wants to be an innovation leader for multiple reasons,” Irv Rappaport, former Chief Patent Counsel at Apple and National Semiconductor, who served on the Uruguay Round of GATT, told IP CloseUp recently. “It is fascinating to see how the U.S. patent system is imploding, while the Chinese system is exploding with activity and purpose.

“For more than a decade the U.S. has been emasculating its patent system, while the Chinese have been studying it and adopting the benefits of a well-coordinated and fast-moving one. The U.S. has gone from being on the global cutting edge in IP in the 1990s, to becoming a patent backwater, because of a well-heeled, anti-patent faction among technology companies that want to stifle competition.

“Train Wreck”

“China has watched the U.S. train wreck and is moving fast to fill the void,”continues Rappaport. “It wants to become the world’s ‘Eastern District of TX,’ that is, a fair and fast adjudicator of disputes that respects patent holders’ rights. China will soon be the world’s largest economy with the biggest population and a middle class the size of England, France and Germany combined. Their commitment to innovation can not be ignored.”

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Peter Holden, CEO of ipCreate and former managing director with London-based Collar Capital and a founding executive with IP Value, has worked extensively with Asian companies and patents. He has traveled to Korea, China and Japan more than 100 times over the past twenty years. “The Chinese have learned from the U.S. and are sincere about making their IP system the best — one that will encourage innovation and help their nation to become the economic leader. It is not merely a thought. It’s an idea that they are dedicated to.

“China’s attitude towards foreign patent enforcement may not always be as generous as it is currently. It knows that it needs to bend over backwards to be fair if it is to be taken seriously on a global scale. To encourage competition there needs to be a level playing field.”

Counterfeits Still Rule

But China’s record on counterfeits is poor, with everything from luxury goods to pharmaceuticals sold domestically and exported globally. According the U.S. International Trade Commission, Chinese theft of U.S. IP in 2009 alone cost almost one million U.S. jobs and caused $48 billion in U.S. economic losses.

“Counterfeit goods are still an issue for China,” says Erick Robinson, a patent attorney in Beijing and author of Defending a patent case in the brave new world of Chinese patent litigation, in the current issue of IAM magazine. “However, sales of fake goods are no longer openly accepted and the government has been on the war path trying to stop them in different ways. Authorities know that in order to be taken seriously about IP rights, they cannot ignore the problem of counterfeit goods.”

For a prior IP CloseUp post summarizing the Robinson article, go here.

“Go-To” Jurisdiction

China is just beginning to build its giant tech companies. They have succeed with Alibaba and Huawei, and acquired Lenovo from IBM, which is now a $45 billion (USD) business. Their big businesses currently have less to lose from strong patents and quick dispute resolution than those in the U.S. and Europe. To create successful businesses and attract investment, incentives need to be provided, and strong patents and a reliable legal system for adjudicating disputes are great for encouraging that.

Perhaps when China has as many big tech players as the U.S. it will start to think more defensively, but for now it is the perfect setting for encouraging new ideas with strong patents and courts that make it easy to obtain injunctions.

“It’s interesting that the Chinese are encouraging large foreign corporations to sue non-Chinese companies in China,” opines Rappaport. “This suggests that they are looking to become the patent litigation go-to jurisdiction.” As their innovation grows and becomes more complex, I believe they will have less interest in exporting cheap knock-
china-is-receiving-the-most-invention-patent-applications-in-the-world-insideiim-rishikeshakrishnan-1024x792

offs.  Their IP path is similar to that followed by many of today’s developed economies, such as Japan and South Korea.  You start off copying others and gradually move to internal innovation.”

Despite China’s success in facilitating stronger patents and more decisive courts, a huge question is just how prominent a role will patents play in new companies in a data-driven information age.

“Given the accelerating pace of technology development and nature of discoveries, which are frequently software driven, it’s not clear whether existing patent systems can remain relevant in the longer term,” says Rappaport. ” This effect may partially explain why patents currently seem to be less relevant in the U.S.  It remains to be seen whether this is a longer term development. It is a development that needs to watched.”

“100% Win Rate”

“Trust the Chinese government to do what is best for the Chinese people,” reminds Beijing-based Robinson. “It’s less about assisting foreign patent holders than establishing a really viable IP system that encourages innovation and growth, and that attracts foreign investment. Forty-percent of the smart phones in India are currently manufactured by Chinese companies. Innovation coupled with enforcement will drive China’s new businesses and help them grow.”

As reported by Robinson in IAM, “foreign plaintiffs notched a 100% win rate [65 – 0] in civil cases heard by the Beijing IP Court last year, according to a judge who has been on its roster since it was established in 2014.”

Wake-Up Call

A decade of weakening has taken its toll on the U.S. patent system and patent holders. It will not be quick to recover unless a concerted effort can be made to take IP rights seriously. Allowing U.S. patent policy to be dictated by those with the greatest financial success and market share may be appealing to shareholders, but it is not necessarily what is needed for the nation to remain competitive in a global economy, and to generate new businesses and jobs.

Hopefully, the wake-up call comes soon for the U.S. and it can retain the title of innovation leader it has held since the 19th Century but is slipping away.

Image source: insideiim.com; chinapatentblog.com; wsj.com

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China is poised to overtake the U.S. as the leading patent system

January 11, 2017 by Bruce Berman 2 Comments

A few years ago a company whose patents were violated in China had little or no chance of defending its rights. 

Determined to move beyond its role as a low-cost provider of look-alike consumer products, and establish itself as an innovation leader, China has learned from the successes – and mistakes – of other intellectual property systems, especially the U.S. The nation of 1.4 billion inhabitants has rapidly emerged as what is currently among the fairest and most patent holder-friendly systems in the world.

Chinese patent courts second only, perhaps, to Germany in quickly and fairly adjudicating disputes.

A fascinating article in the current IAM magazine, “Defending a patent case in the brave new world of Chinese patent litigation,” details China’s rapid rise from low-cost copier to a patent power, and a nation that has caught the attention of major global technology powers who are often defendants.

Damages awards are relatively small in China, with median awards currently around 35,000 Renminbi or about $5,000, but injunctions, the power to stop a likely infringing product from being sold, are now issued over 99% of the time to winning parties. NPEs, what some U.S. companies refer to as patent “trolls,” are treated fairly as long as they their patents are of sufficient quality and are the companies are generally supportive of Chinese welfare.

__________

Patent litigation win rates, according to the article, average around 80%. Startlingly, foreign plaintiffs fare better statistically than Chinese. 

__________

The U.S. effectively ended the granting of patent injunctions in 2006 with EBay v. MercExchange. Now, only operating companies can obtain them in rare circumstances. This removes most of the leverage afforded patent holders. Granted, injunction abuses are a fact of life, and dubious patents have at times been used to enjoin products, costing companies time and money. But without the power to stop a product from being sold, patents have little meaning.

Race to the Bottom

“Largely as a result of the United States’ race to the bottom in terms of patent enforcement, Germany has emerged as a go-to patent jurisdiction, with virtually guaranteed injunctions, quick time to trial and no discovery resulting in a highly efficient system,” writes Beijing-based Erick Robinson, chief patent counsel, Asia-Pacific for Rouse, a global IP strategy firm.

Patent-holder Win-Rates and Median Damages Awards 

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“Enter China. For years the laughing-stock of all things IP related, the Middle Kingdom was ridiculed for the easy availability of counterfeit handbags, software and DVDs. However, over the last 15 years, and especially in the last two to three, China has put together an extremely effective patent enforcement system. Based largely on the German system and all of its advantages, but with selected portions from US law, China has now become a top forum for patent litigation.”

Unlike most countries which enjoin making, using and selling allegedly infringed products in-country, as well as imports, Chinese law also bans infringing exports from leaving the country. So, for example, if the accused device is Apple’s iPhone, not only can sales of iPhones in China be enjoined, but also exports of the devices from China. This would enable a patent owner to achieve an effective worldwide ban, since iPhones are manufactured in China.

Slippery Slope

With U.S. patent protection significantly diminished over the past decade, and China’s on the rise, the U.S. is on a slippery slope when it comes to stimulating R&D, innovation and investment. It is well on its way to becoming a second-rate patent system, and a slip in disruptive innovation, necessary for the creation of new industries, difficult to measure in real-time, has probably started. Certainly, companies and their stakeholders are thinking twice before pursuing or relying upon USPTO-issued patent protection.

It remains to be seen if China, a continuing source of counterfeit goods that are shipped worldwide, is committed to providing its businesses, as well as those outside of the country, with a legal system that can meet the needs of all business holders, and permit fair and timely resolution of legitimate disputes.

High Win-Rates; Low Damages Awards

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China is now the second largest filer in the U.S. and, while its companies have rarely resorted to filing suits in the U.S. against U.S. companies, there is little doubt that it will do so in the future. Technology giants include Alibaba, Xiaomi, Huawei and Lenovo.

China is likely to be more aggressive enforcing its patents than U.S. frequent-filer Japan, which has been reluctant to engage in domestic or foreign patent disputes. (There are some signs that is changing.) Samsung, by far the largest holder of U.S. patents in the world, has shown a greater willingness use its patents for licensing and leverage.

China may or may not be deliberately attempting to embarrass U.S. and eventually surpass its moribund IP system, but the impact is the same. Continued lack of awareness of what IP rights achieve and for whom, and lobbying, has significantly compromised the once-exemplary U.S. patent system. The Chinese are not too new to capitalism not to see this as an opportunity to compete. For the U.S.’ sake, let’s hope it’s not too late to make invention rights a priority again.

“The brave new world of Chinese patent litigation” can be accessed here or here.

Image source: IAM magazine

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Rampant IP Piracy is Hurting U.S.

June 17, 2010 by Bruce Lehman 0 Comments

China-U.S. IP Policy:

Not a Two-Way Street

The United States International Trade Commission (ITC) held a public hearing on June 15 and 16 that focused on China’s IP policies and their effect on the U.S. economy.  The ITC, which hears Section 337 investigations involving unfair IP competition, is a relatively fast-track option to district courts.

Among the organizations and witnesses testifying was Hon. Bruce A. Lehman, former USPTO Commissioner and Undersecretary of Commerce from 1993-1998 and President of the International Intellectual Property Institute, an un-affiliated IP think tank. Lehman believes the U.S. IP relationship with China, which was negotiated on good faith in the 1990s, is failing miserably.

“Between 1998 and 2008 the U.S. trade deficit with China grew from$81.8 billion to $268 billion,” notes Lehman.

“The underlying assumption [of the Clinton Administration] was that the United States would permit China and other developing countries to benefit from their comparative advantage in labor costs, while we would benefit from our comparative advantage in technology. Ideally, this would work to the benefit of both parties.”

Unfortunately, full value of U.S. technology and products have not been realized because piracy and IP rights infringement is rampant and constitute a significant and still growing part of the Chinese economy.

“Taken all together the various aspects of the emerging Chinese intellectual property system combine to disadvantage IPR based imports,” continues Lehman, “sheltering domestic technology and information based industries from effective foreign competition, while the Chinese create their own export-competitive industries.”

The full text of Lehman’s testimonycan be found at this link. It’s worth reading and remembering.

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