The US Spent Years Telling China To Take Patents Seriously; Now It's Freaking Out That China Is Doing So
from the come-on-guys dept
By now, I’m sure, you’ve heard the story over and over again about how China “doesn’t respect” things like patents, and how the US has had, time and time again, needed to use diplomatic pressure to try to get China to stop trying to copy American inventions, and to start “respecting” patents. Yet, for many years, we’ve been pointing out how brain dead this logic has been. All the way back in 2009, we warned that China was using this bizarre American obsession with patent monopolies against us. And that has continued over the years. Suddenly, China started flooding foreign patent offices with millions of Chinese patents. Indeed, the country started to “respect” patents so much, that it basically turned into a giant patent troll, shaking down foreign companies for money — and more importantly, using those patents to block competition (remember, patents are a monopoly right).
In the last few years, this has ramped up, and, just as we warned, China began using that monopoly right as a tool to punish and block foreign competitors, clearing the market for Chinese firms — all because the US and its patent maximalists demanded that China “respect” such monopoly rights.
Given that history, it’s now absolutely hilarious to see the collective freak out going on among patent system supporters about the fact that a Chinese national, Wang Bingying, is in line to become the next head of WIPO, the World Intellectual Property Organization. Now we’ve had our problems with WIPO over the years. It’s a UN body that is completely one-sided towards patent and copyright maximalism — spreading the message of more monopolies around the world. Wang is currently the deputy director, and the obvious next in line after WIPO’s current controversial leader Francis Gurry — who was accused of many questionable activities, from ignoring sanctions to giving computers to North Korea and Iran, ostensibly to set up domestic patent systems, but which many argue were used in nuclear programs — from surreptitiously collecting DNA of WIPO employees to try to spot a leaker, to (incredibly) threatening a blogger with criminal charges for reporting on some of Gurry’s misconduct.
Gurry’s position runs out this year and a bunch of candidates are jockeying to replace him. Given Wang’s current role, he’s an obvious next choice, but to hear American patent maximalists talk about it, they act as if WIPO under Wang is basically shutting off the entire patent system. Current US Patent Office director Andrei Iancu warned that Wang leading WIPO would be totally unacceptable. Patent maximalist, Tom Giovanetti, warned that letting Wang take over would be “surrendering the global IP system to China.” Former National Security Advisor John Bolton even tweeted that letting Wang take the top job at WIPO means that “the ability to protect intellectual property is gravely threatened.”
Secretary of State Mike Pompeo is also warning people that letting Wang take over “would be absurd.”
To be clear: almost all of this is absurd. Wang has worked at WIPO since 1992, including for years in his current position as deputy director. No one has presented any evidence of malfeasance by Wang, or anything beyond racist fear mongering that because of his nationality, he’ll somehow destroy all intellectual property around the world.
But, more to the point: after decades of US officials and patent system lovers whining that China doesn’t respect patents, now that it’s finally “respecting” the patent system, their first reaction is to say that someone of Chinese nationality can’t run a UN organization that focuses on global patent policy? It’s almost like we never actually wanted China to “respect intellectual property.” People just wanted China to bow down to American inventions.
Filed Under: china, francis gurry, patents, wang bingying, wipo
Comments on “The US Spent Years Telling China To Take Patents Seriously; Now It's Freaking Out That China Is Doing So”
Another Parallel Construction
To find the most maximal of maximalists, let us explore a hypothetical. Two groups, one in the US and one in China actually invent the same thingamajig at about the same time totally independently of the other, and provably so. Both products work on basically the same principle and in the same way. The similarities are, in fact, uncanny.
Both apply for patents in their respective countries, and both are granted patents that have no prior art implications. The next step of course is both try to sell thingamajigs to someone in the EU and when they find out about not only the competing products but the similarities. Both companies claim patent infringement. The investigation uncovers the independent development processes that created ostensibly the same product in two different places at approximately the same time. At some point, the dispute might wind up in front of WIPO, and here is where it gets tricky. Which country does more to protect its IP when both IP claims are legitimate? Now we have exposed the most maximal of maximalists.
Re: Another Parallel Construction
you are starting from the wrong assumption… that assumption is that "development", "invention" or "prior art" has the same meaning in US and in China.
It does not.
US uses a first-to-invent rule for patent priority, but China uses a first-to-file… that means if an invention is not filed and registered with Chinese Patent office.. it doesn’t exist for them, and if someone later files the papers for "their" invention… that someone gets the patent.
Re: Re: Another Parallel Construction
And yet patents get enforce across borders. Is that because patent applications are filed in many countries? If so, what are the rules if the patent application in the US is filed three days prior to the one filed in China? Does China acquiesce to the US patent?
Re: Re: Re: Another Parallel Construction
again with the wrong assumptions… "patents get enforced across borders". That assumption is usually not valid in China, unless the official patent text to be enforced is issued in Chinese language.
simply translating an English patent into Chinese is not a valid prior art patent claim because the Chinese language uses characters that express an entire word/phrase/concept with a single character and a translator’s (mis)interpretation or addition of a single line to a character could cause untold problems later on.
That’s why they require that the official patent text must be in Chinese language.
Re: Re: Re:2 Another Parallel Construction
Are you saying that the US does not recognize Chinese patents and China does not recognize US patents? Seems like a big problem for all those US companies that use Chinese manufacturers. I wouldn’t think that those companies would turn over their IP without some protection. I am aware that whatever protection there is has been ignored and knockoffs have been made, but some action was probably taken.
Re: Re: Re:3 Another Parallel Construction
"Are you saying that the US does not recognize Chinese patents and China does not recognize US patents?"
He’s saying (or implying) exactly that. And he’s fairly accurate in this assertion.
"Intellectual Property" is, to 95%, in practice, nothing more than an attempt to institutionalize monopolies.The sole exception being trademark law which, albeit heavily abused, still has a solid principle to rely on.
The US-China issue is to 100% a case of the US historically trying to keep China from emerging as a viable competitor in the global market by using IP law as a lever, and now when China is able to similarly use that same law as a lever the US finds it reprehensible.
It’s a case of one bully having kicked another now whining about the victim getting up and bullying right back.
The US built a system which served well to give them advantage as long as they were the primary investers in that system and now they have become the architects of their own destruction, being hoisted with the petard they spent so very much effort getting the world to accept as a global standard.
It’s deliciously ironic and makes a solid case that we should really take an axe to IP law in general.
Re: Re: Another Parallel Construction
This hasn’t been true for years (the rule changed in 2011). The US is now "first to file" like most of the rest of the world.
Re: Another Parallel Construction
A patent issued in China is only enforceable in China. A US patent is only enforceable in the US. Neither patente has any rights anywhere within the EU unless they seek such rights under applicable EU and/or national laws. If the two parties seek such rights in the EU, only one should prevail in accordance with the applicable rules of priority of invention.
Re: Re: Another Parallel Construction
I’ld rather see that the EPO would not issue a patent when there are two conflicting applications without one having a clear priority. The "invention" must have been obvious if two people (groups, companies) do it independently at the same time.
How did China get market economy evaluation?
They never got around to removing slave labor from their supply chain and are under worldwide sanctions still.
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So, just like the US then?
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I’m not aware of a US origin network of that sort.
Re: Re: Re: Re:
"I’m not aware of a US origin network of that sort."
Because a very large part of the US base supply chain relies on gray-area labor carried out by immigrants, often illegal ones, doing the jobs no one else wants or in shady sweatshops with no oversight overseas.
Or, more ironically, rely primarily on China’s slave labor sweatshops to supply their needs.
You really aren’t well served with the argument that China’s supply chain consists of slave labor when the US is the prime beneficiary of that very same supply chain…
Re: Re: Re:2 Re:
And this:
https://www.csmonitor.com/1994/0209/09081.html
Re: Re: Re:3 Re:
Oh, how grand.
So the US, with twenty years worth of human rights activists up in arms about the institutionalized "prison slave" system, is now waxing indignantly over China adopting the traditional US practice of forcing prisoners into indentured serfdom.
We could probably summarize the US reaction to China as "They’re cheating the same way WE do now!! Stop them!" on far too many levels.
The only thing which shocks me is that my use of the term "slave labor" was apparently less ironic in reality than I thought.
Hypocrisy
I’ve heard many stories over the years about how the U.S. ignored copyrights and patents for the rest of the world until sometime last century.
Also something about Hollywood being established in order to ignore some patents held by Edison.
Re: Hypocrisy
The same story has been played out by individual companies as well.
Re: Hypocrisy
"I’ve heard many stories over the years about how the U.S. ignored copyrights and patents for the rest of the world until sometime last century."
Copyrights and patents have always been about enabling the current majority stakeholder to suppress newcomers and potential competition. Nothing else. And that same stakeholder is always the first one to cry foul when the potential competition finds itself in a place where THEY can lever those very same laws.
In an ideal world, or even one not completely fucked up, governments should be the arbiters who see the long-term hazard of allowing manifestly unfair and insane laws to be rolled out globally, and refuse to accept them.
Essentially, if the patent system will be broken by Wang moving from being deputy Head of WIPO to being Head of WIPO, the patent system was already broken.
There should be NO system of government that can be broken by a single individual changing roles within the organization. If there is, the fault isn’t (completely) with that individual.
Re: Re:
Almost every Government system can go crazy with the wrong person in charge.
Betsy Devos has turned the education system into a cut throat loan shark that exists to keep spending money collecting as much debt as possible from students. She had to have a Judge almost hold her in contempt in order to enforce legal orders to stop collecting payments from students.
The FCC has said its not in charge of regulating the internet or net neutrality after Trump installed new leadership. The list goes on from here.
Bad people in charge will result in insane outcomes.
Re: Re: Re:
Yes, but this is buildup of corruption and cronyism over years; Devos and Pai, for example, could not have accomplished what they did without support from others. They didn’t act alone.
Likewise, if the maximalists are arguing that Wang being head of WIPO spells its end, that means they recognize a buildup of corruption and cronyism in WIPO — either supporting Wang’s projected "new regime", or surrounding a regime that is about to be destroyed by "outside" leadership.
Personally, I think they’re just projecting and don’t like the idea of fair dealing.
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The point is that in such cases, the system is already broken, which is not invalidated by those examples.
Mildly disingenuous article
Copying patented goods to undercut the market is not nearly the same thing as weaponizing patents to block competition. The former is the activity of a society that fails to create its own inventions, the latter a product of an educated society. In this case a society educated in the west.
Yes, the US and other nations had a decades-long problem with Chinese companies, contracted by foreign companies to produce a product, cloning those products and selling them in China and elsewhere as their own. Politically pressuring China to curb that behavior makes practical sense. But to argue that that pressure created this latest problem is fallacious.
China has grown up (a little). Huge numbers of Chinese have been educated in western countries and brought up to speed on modern technology, interacting with western nations and other things their formerly insular government would not allow. They’re inventing their own technology now and looking to use the globe’s patent systems to protect their assets in the exact same way every western nation already does. That they create vast piles of patent applications is attributable to the sheer numbers of people living in China.
We have a new problem that is patent and China related but don’t claim causation where none exists.
Re: Mildly disingenuous article
I don’t even see a claim to causation, which yet may exist, regardless. I see a statement that a thing was wanted from China, and when China started playing the game that was wanted, it caused unwanted consequences which have been subject of complaint. Meanwhile, the original and no longer valid complaint is still bandied about in parallel.
China now plays the patent game as others do, but the complainers still don’t like it. That was the subject.
Re: Mildly disingenuous article
"Copying patented goods to undercut the market is not nearly the same thing as weaponizing patents to block competition."
They are one and the same since the "educated society" you describe appears to be a platonian ideal which does not, in practice, exist anywhere.
US companies are especially known to weaponize patents as anticompetitive measures, although that practice is common enough in all aspects of the industrialized world.
" But to argue that that pressure created this latest problem is fallacious."
Correct. Patent Law inherently contains this problem.
"They’re inventing their own technology now and looking to use the globe’s patent systems to protect their assets in the exact same way every western nation already does."
…by weaponizing patent law to block competition, the exact same way western nations, and particularly the US, has always done. The current "problem" is nothing more than the loud whining of a bully with a stick complaining that one of the victims is now holding a club of their own.
"We have a new problem that is patent and China related…"
I think you’ll find that it’s a very old problem which has existed in every area where any form of IP protection ever existed. French lace manufacturers come to mind, as does the lampoonish "petition by the candlemaker’s guild" by frederic bastiat.
Well of course the copyright/patent maximalists are freaking out. When they said China needed to start respecting patents China apparently didn’t hear the implicit and silent "our" in that sentence and that’s now leaving those maximalists in the situation they wanted China to be in.
(appropriate tags are left as an exercise for the student)
Re: Re:
China very well heard the implicit "our" in the request; but the Americans should have realized that the China has millennia of experience of being flexible with the law, instead of a few centuries for the US.
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What americans should have realized is that a manifestly insane law built for exploitation such as patent law WILL eventually be used against them. As such laws have always been abused in the past.
This is just so that when he goes too far, they can still complain that he hasn’t gone far enough.
What’s that old saying? Be careful what you wish for because you might just get it? LMAO
racism
Check.
People just wanted China to bow down to American inventions.
Ask those "other guys" and its never racism when its directed at the Chinese.
Why is that exactly?
Thanks for saying it out loud.
Re: Re:
"Ask those "other guys" and its never racism when its directed at the Chinese."
Racism is more ethnically specific, usually. No, this is just standard old gunboat realpolitik with one nation used to being on top of the world suddenly whining that another nation has made it to the point where it can use the same legal framework against them.
Not going to say that a lot of US politicians aren’t silently using ethnic slurs to describe asians the same way they do black people, but the current IP wrangle with China is rooted in standard politics, as practiced for as long back as the concept of a "nation" existed.
The litmus test here is that if Huawei was in the position of contributing as much or more to US political campaigns as Cisco, Cisco would be the one getting thrown out.