Intellectual Property in China 知识产权与中国发展

2007年8月27日星期一

薛兆丰：知识产权与反垄断

薛兆丰：知识产权与反垄断，2007年8月27日《经济观察报》“解释反垄断”专栏系列（之十八）

确实，“芝加哥学派”，张五常，CARL SHAPIRO，Richard J. Gilbert的相关论著，Antitrust Guidelines for the Licensing of Intellectual Property (April 1995), Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (April 2007), 都是认识知识产权与反垄断的好读物。

2007年8月22日星期三

WIPO PATENT REPORT 2007 - Statistics on Worldwide Patent Activities

Some highlights in this report:

1 Very high growth rates in patent filings by applicants from North East Asian countries, particularly Korea and China. It is clear that this is a process that is ongoing.

2 Filings of PCT international applications from Korea and China have grown significantly since 2002, to the point where both countries are now within the top ten of origin of PCT international applications.

3 China’s ranking on Indicators of Patent Intensity, which compare patent filings with other indicators, namely population, GDP and R&D expenditures, remains low. These indicators allow for more meaningful cross-country comparisons by weighting the number of patents by different measures of country size and economic activity.

4 The increase in patent filings from newly industrialized countries does not yet translate into ownership of patent rights internationally by applicants from those countries. Of the approximately 5.6 million patents in force in 2005, 49% were owned by applicants from Japan and the United States. The major European countries are also strongly represented in ownership of patent rights.

5 Patent applications filed in the field of electricity and electronics represented 35% of worldwide patent filings between 2000 and 2005. Patent filings in this technology field are concentrated in the patent offices of Japan and the United States followed by Korea, the European Patent Office and China.

ECONOMIST: Benchmarking IT industry

A report from the Economist Intelligence Unit: The means to compete - Benchmarking IT industry competitiveness

“The purpose of the IT industry competitiveness index is to compare countries in different regions of the world on the extent to which they possess the conditions necessary to support a strong IT industry. To achieve this, the Economist Intelligence Unit has built a benchmarking model which scores individual countries on the key attributes of a competitive IT sector.”

There are six categories of indicator used in the index. Among them stands the legal environment category, which includes comprehensiveness, transparency of IP legislation, adherence to treaties; enforcement of IP legislation; status of electronic signature legislation; status of national data privacy and anti-spam laws; and status of national cyber-crime laws.

Selected legal environment category scores are: United States 92.0; United Kingdom 88.5; Ireland 88.5; Germany 85.0; Japan 79.0; South Korea 66.0; China 49.0; India 48.0; Russia 38.5.

Some China-related views expressed in the report concerning IPRs:

Miller, Stanford University: “Companies complain about IP a lot but they still go there, and they protect themselves. They compartmentalise information so no one person can walk out the door with the complete story.”

Kagermann, SAP: “As China's homegrown companies begin to innovate, IP protection will be more rigorously enforced.”

Keith Collins, SAS: “They (MIT and Standford) no longer try to take an up-front value out of the IP - they take the risk of whether that IP will succeed in the marketplace, which makes it more likely that an entrepreneur can pick it up and succeed with it. Many universities have tried to drive revenue from IP, and that’s been a mistake.”

2007年8月21日星期二

尹明善谈专利

知识产权政府门户网站专题在线访谈：“完善地方专利法规，推行创新型城市建设”

重庆市政协副主席、力帆集团董事长尹明善：

“政府采购的时候要采购有自主知识产权的产品，一个企业研发新产品要打开市场的时候，我觉得政府采购要予以支持。”

“我认为有一个误区就是都认为所有的企业必须要努力搞一些专利技术，事实上绝大多数的中小企业是不可能的，他们是心有余而力不足，他们只有那么一点资金、那么一点科技力量，怎么来创造那么多的专利。”

“中国是一个发展中国家，中国有这么多弱小的中小企业，如果身为中国的官员、身为中国的知识产权保护的干部和立法者、实施者，不正视中小企业的弱小、不正视强国运用只对他们有利的东西欺压咱们中国这样的发展中国家，如果不奋力保护，我们就是傻瓜，我们永远就是一个发展中国家。”

“说到中国摩托车，包括重庆的摩托车，说80%都是仿造日本的，这个话我要做一个澄清。为什么呢？在80%中有99%是非专利技术，是专利保护期已经过了的技术，我们怎么不能用呢？比如说在全中国、重庆大量生产的CJ125的型号，这个原创来自日本，可是日本已经卖了20、30年了，人类的科学技术要发展，专利的保护一定有期限，不然就没有发展了。所以这里必须要澄清，不但中国的摩托车企业、绝大多数制造业都扣上了一个仿造、侵犯知识产权的帽子，这个不公正，他们的保护期过了，有的甚至是老祖宗的技术。”

“要理智的是，千万不要被人家吓住了，哪里有那么多的仿制呢？我们真正要为发展中国家说话，要呼吁世界各国把发明专利保护期缩短。因为信息时代，科学技术的发展很快，一个芝麻大的技术要保护10、20年这个合理吗？”

“在一次全国政协会议上我写了一个提案，我们国家专利申请的费用和国家的人均GDP不相称，太高昂了。就是申请多少钱、保护一年多少钱，像力帆这样的企业，每年要花几百万。我作为政协委员的一个提案希望缩减。”

2007年8月14日星期二

U.S. Requests WTO Panel in China's IPR Case

United States Requests WTO Panel in Case Challenging Deficiencies in China’s Intellectual Property Rights Laws

"First, the request challenges quantitative thresholds in China’s criminal law that must be met in order to start criminal prosecutions or obtain criminal convictions for copyright piracy and trademark counterfeiting. Wholesalers and distributors are able to operate below these high thresholds without fear of criminal liability, so these thresholds effectively permit piracy and counterfeiting on a commercial scale.

Second, the panel request addresses the rules for disposal of IPR-infringing goods seized by Chinese customs authorities. Those rules appear to permit goods to be released into commerce following the removal of fake labels or other infringing features, when WTO rules dictate that these goods normally should be kept out of the marketplace altogether.

Third, the panel request addresses the apparent denial of copyright protection for works poised to enter the market but awaiting Chinese censorship approval. It appears that Chinese copyright law provides the copyright holder with no right to complain about copyright infringement (including illegal/infringing copies and unauthorized translations) before censorship approval is granted. Immediate availability of copyright protection is critical to protect new products from pirates, who – unlike legitimate producers – do not wait for the Chinese content review process to be completed."

"The U.S. panel request will be considered by the WTO Dispute Settlement Body at its next meeting, which is scheduled for August 31."

2007年8月9日星期四

Productivity in Patent Offices

Ernst & Young: Benchmarking Project – Productivity of the EPO, UKIPO & DPMA

Managing Intellectual Property: EPO productivity woes revealed

“Ernst & Young in cooperation with Management Team has been engaged by the European Patent Office (EPO) to conduct a benchmarking study on the productivity of the EPO and the national patent offices UKIPO (United Kingdom) and DPMA (Germany). This benchmarking study included the comparison of legal environments, the comparison of the patent granting processes and the analysis of productivity, measured by ‘time per action’-type of indicators, and productivity drivers, measured by specific key performance indicators. The analysis found that EPO’s productivity falls significantly behind the level of the national offices and identified a 50% difference in productivity between the EPO and the national offices. This difference is to some extent caused by the methodical features, since effort for written opinions and the involvement of the examining division cannot be properly accounted for. The total effect of these features and eight other explanatory factors may explain a productivity difference of 35% – 45% with two factors remaining that may be able to explain the residual.”

A detailed analysis of quantitative data on the patent granting process, the core of the project, is performed, including development of a methodology for measuring and comparing productivity, as well as findings of the root causes of the identified differences.

The statistics of certain productivity measures, such as time per product, time per communication, and of certain productivity drivers, such as experience of patent examiners, sickness days, adequacy of initial file allocation, communication per grant/refusal/withdrawal, oral proceedings per grant/refusal/withdrawal, are all of value.

The benchmarking results and recommendations are also applicable to SIPO to a great extent.

2007年8月8日星期三

Grant rates in the patent office

MARK A. LEMLEY, BHAVEN N. SAMPAT: Is the Patent Office a Rubber Stamp?

"While it grants patents to more than two-thirds of those who apply, the USPTO is not a rubber stamp. It rejects a small but non-trivial percentage of applications (15-20%), and more applications are abandoned for business reasons. …… Further, in a significant number of cases – around 40% of those that issue – the prosecution process requires the applicant to amend the claims, presumably generally to make them narrower.”

“We also find that the likelihood of obtaining a patent varies significantly by industry in surprising ways. For example, patents are much more likely to be granted in the chemical and pharmaceutical industries than in software and computer fields.” “Overall, those industries that are most identified with bad patents (computer software, hardware, and business methods) turn out to be those with the lowest grant rates.”

“Our findings certainly suggest that debates about patent system reform need to move beyond a narrow focus on the grant rate. They also suggest that published patent application data and PAIR transaction/status data are a rich and unexplored source of information for examining the law and economics of the patent system, and firm and industry level patent strategies.”

Notes 1: The grant rate statistics of USPTO is similar to that of SIPO, according to my observation.
2: SIPO lacks a database system like PAIR, which limits its further capacity building.

My humble translation for Asia Business Intelligence

Asia Business Intelligence:

Guangdong Court Applies Hong Kong Law in Commercial Lease Dispute

2007年8月7日星期二

India Rejects Novartis's Gleevec Patent Bid

Bloomberg: Novartis's Gleevec Patent Challenge Rejected in India

"The patent for Gleevec/Glivec - granted in nearly 40 countries, including Russia and China - was denied in India in 2006. ……Novartis said it probably won't appeal today's decision to the country's supreme court."

SciDev.Net: Victory for generics in Indian patent case

"Leena Menghaney, from the India office of MSF, told SciDev.Net that India sets an example to the rest of the developing world in setting standards for TRIPS and safeguards to protect the rights of access to treatment for the poor."

Novartis concerned Indian court ruling will discourage investments in innovation needed to bring better medicines to patients:

"1 Court dismisses Novartis petition challenging constitutionality of Section 3(d); defers to World Trade Organization (WTO) to resolve question on TRIPS compliance;
2 Gleevec/Glivec patent appeal not decided; Intellectual Property Appellate Board (IPAB) review continues as separate proceeding."

Section 3(d) of The Patents Act of India states:

"The following are not inventions within the meaning of this Act, - (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

Explanation - For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy."