How China’s Intellectual Property System Is Changing Global IP: Part 2

Jul 2, 2020

How China’s Intellectual Property System Is Changing Global IP

In Part 1 of “How China Is Changing Global IP,” patent experts analyzed China’s intellectual property overhaul, which resulted in China becoming a leader in world patent filings and technological research and development. Now, Chinese patent filings make up an incredibly large collection of prior art that should not be ignored by U.S. patent practitioners. In our second webinar on China’s impact on global IP, the Honorable Randall Rader (retired chief judge of the United States Court of Appeals for the Federal Circuit), Rob Sterne (the founding director of Sterne, Kessler, Goldstein & Fox P.L.L.C.) and Gene Quinn (U.S. patent attorney and founder of IPWatchdog.com) discuss the following six major ways in which China is changing global intellectual property.

#1. Litigation strategies have become more international rather than domestic. China is developing into an IP leader, and patent owners may be able to obtain early injunctions faster and for less expense in China than in other countries. Patent owners may even see Chinese injunctions as being stronger than in other countries because of the amount of manufacturing that occurs in China, which may provide tremendous leverage to patent litigation strategies.

 #2. China is a leader in antiviral technology in terms of volume, which will be incredibly important moving forward considering the state of the current COVID-19 pandemic. The Chinese government has poured billions of dollars into the area, and thousands of companies spanning the spectrum in terms of size are working on patentable solutions to these antiviral technology problems. Additionally, many vaccines and active pharmaceutical ingredients are already manufactured in China, and Chinese research and development continues to move forward, giving the country a head start over many others that have shut down research in response to the novel coronavirus.

How China Is Changing Global IP

#3. Foreign patent owners have been faring well with Chinese patent enforcement, contrary to the popular belief that Chinese patent enforcement is both difficult and expensive for foreign patent owners. Data show that foreign patent litigants were doing better in China than in the U.S. as of before recent trade negotiations. Patent owners should be aware that, if all is done correctly, such as by being familiar with China’s procedural rules and having local litigation assistance, foreign patent owners can have success in China in patent enforcement cases.

#4. A German Federal Constitutional Court may have driven the last nail into the coffin of the Unified Patent Court (UPC) when it said that the act of the approval of the UPC was void. The UPC has been seen as a way to diversify patent litigation cases across the European Union (EU); however the lack of enthusiasm for the UPC shown in German and many other EU countries could catapult China into even more importance regarding international patent enforcement.

#5. The U.S./China Trade Deal, which had its first phase signed between China and the United States in January, will have implications in a handful of intellectual property areas. Most notably, the deal strengthens definitions for trade secret misappropriation and shifts the burden to defendants, and it codifies past promises regarding pharmaceutical-related patents and e-commerce counterfeiting.

#6. More things are patent eligible in China as a result of its adoption of an expansive definition of patent-eligible subject matter. This encourages patent filings on leading-edge technologies and has helped China to amass an incredible amount of prior art that cannot be ignored by patent applicants, regardless of their patent filing country. Patent professionals are now under pressure to include a search for Chinese prior art, and the language barrier that formerly contributed to Chinese patent filing inaccessibility to English speakers has been bridged by international search tools like LexisNexis TotalPatent One® that provide full-text translations of Chinese patent documents.

 

China continues to shape the state of global intellectual property in a way that cannot be ignored. For more information on how Chinese patent reform is impacting U.S. patent applicants, check out Part 1 of this series and our “China and the Global Patent Landscape Webinar” where this article’s topics are covered in greater detail.

Access the on-demand recording of the webinar “China and the Changing Global Patent System”.

The LexisNexis TotalPatent One® patent search platform enables patent professionals to access more than 1 million patent documents from patent authorities around the world, including machine-translated patent documents from the Chinese Patent Office. Users can search in English or in the language of an original filing, and the option to reverse-translate patent documents from English into Chinese is currently under development. With TotalPatent One® patent search tools, patent professionals can perform comprehensive patent searches without missing out on the abundance of prior art produced by China.

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