Author: ScienBiziP Time: 25.05.2018
The United States has been investigating intellectual property protection since the 1970s against Japan, in the 1980s against South Korea, Taiwan, and Hong Kong, and after 2000 against mainland China, accusing Japan, South Korea, Taiwan, and Hong Kong of “infringement” or “counterfeiting,” and accusing mainland China of “theft” or “theft.” The US government launched investigations under Section 301 (General 301) and Section 182 (Special 301) of the 1974 Trade Act, prompting countries to improve their intellectual property protection environment through legislation, administration, and judiciary, and even prompting leaders of various countries to continue declaring the protection of intellectual property. During this period, American companies also invoked Section 337 of the 1930 Tariff Act to request the International Trade Commission (ITC) to prohibit imports and issue injunctions against intellectual property infringement by Japanese, South Korean, Taiwanese, Hong Kong, and Chinese companies. They also requested compensation for damages, production and sales bans, imports, and uses from the defendant in accordance with Section 271 of the Patent Act. In addition, in addition to state laws, the United States has also enacted the 1996 Economic Espionage Act (EEA) and the 2016 Trade Secrets Protection Act (DTSA) to protect trade secrets. More and more companies and individuals in East Asian countries are being sued for criminal or civil liability.
Although the aforementioned protection and relief measures for intellectual property rights in the United States are US laws, they actually pose a threat and have extraterritorial effects on trade between East Asian countries and enterprises and the United States. This forces Japanese, South Korean, Taiwanese, and Hong Kong enterprises to take corresponding measures, such as investing in research and development, branding, and applying for patents and trademarks in various countries, and making every effort not to plagiarize or imitate works and trademarks. So far, the results have been difficult to be severely accused by the United States, and have turned into infringement or invalidation lawsuits between companies in various countries due to market competition in the United States. Although the mainland continues to improve the legislative, administrative, and judicial environment for intellectual property protection, the professional implementation of Chinese enterprises, except for a few, has not yet been fully implemented and still needs to be improved.
Japan, mainland China, South Korea, and Taiwan have also successively issued intellectual property policies since 2000. For example, Japan advocated for the establishment of an “intellectual property nation” and formulated the “Basic Law on Intellectual Property” in 2002, mainland China issued the “National Intellectual Property Strategy Outline” in 2008, South Korea announced the “Strategy for Achieving an Intellectual Property Power” in 2009, and Taiwan established the “Intellectual Property Strategy Outline” in 2012. Although these government level intellectual property strategies are ambitious, they may follow the “protection” thinking of the United States and its enterprises, and have not yet proposed effective and practical strategies that can surpass the American thinking for their own problems. This can be seen from the fact that Japanese, South Korean, Taiwanese, and Chinese companies have been sued for patent infringement in the United States over the years and continue to pay huge licensing fees and patent purchase prices to American companies. Their strategies have not yet helped solve the problem, and their intellectual property operations have not yet innovated and broken through the predicament. They urgently need to be transformed and turned around in order to change the game.
To put it simply, except for a few large enterprises in Japan, South Korea, and Taiwan that have the resources to professionally operate high-quality and valuable US patents and receive huge monetary returns, most companies either do not have the resources or are unwilling to invest professional resources in them. Even if they invest resources, some are only the “quantity” of US patents, and most of their patents are of poor quality and low value, making it difficult to compete with the United States and its enterprises. In the past decade, with government funding, various sectors in China have seen an unprecedented increase in the number of Chinese patents. However, the quality and value of Chinese patents are very low, and the number and quality of American patents are insufficient. It is not surprising that the United States has criticized them. For example, the United States clamors for “theft”, but theft only applies to trade secrets in law, as patents, trademarks, and works are public rights that do not require theft. Furthermore, without infringing on others’ trademarks, works, and design patents, as long as the business ethics and culture are sufficient and there is no plagiarism, counterfeiting, or theft of others’ trade secrets, it is difficult for infringement to occur. This is all about one heart.
The crux of the problem that East Asian countries really need to face is invention patents, as invention patents involve research and development investment, technological strength, scientific research achievement transformation, patent law, language transformation, process systems and other professions, which cannot be solved ethically. Even if a company unintentionally infringes, it is common for its product technology to step on someone else’s patent landmine. Even if the product technology infringes, more than 60% of the patents involved in litigation can be invalidated or deemed unenforceable. Therefore, the intellectual property protection advocated by the United States based on the “ethical condemnation view” is not suitable for demanding invention patents, and it also makes East Asian countries tend to protect foreign intellectual property rights in their intellectual property policies, while ignoring the comprehensive new mechanisms and cultural transformation of intellectual property rights.
Therefore, East Asian countries cannot follow the intellectual property protection ideas of the United States to promote their own strategies, and need to innovate intellectual property strategies different from those of the United States in order to resist, reverse and benefit. I hereby propose the following: 1 Priority should be given to starting with the patent layout in the United States (in China, an English patent specification can be used to file a PCT application with the Intellectual Property Office), and then applying back to the home country or other countries. If the home country market is small, there is little possibility of litigation, or if litigation evidence or procedures are difficult, it is not necessary to apply because the patent value and patent risk are in the United States; 2. It is necessary to incorporate practical experience in US patent litigation and transactions into patent layout application work in order to help patents grow teeth and ensure quality value; 3. It is necessary to develop data analysis and professional mechanisms for timely and large-scale invalidation of US patents in order to curb improper demands and intimidation; 4. It is necessary to develop new models, mechanisms, and data for patent quality, value, price, and pricing, in order to timely analyze the reality of US patents and their activities; 5. It is necessary to constantly support the operation of the entire lifecycle of patents with big data in order to accurately and effectively operate patent layouts and asset portfolios; 6. It is necessary to develop various systems for high-quality cross-border patent data and artificial intelligence analysis in order to constantly grasp other people’s patent technologies, in order to make mistakes and avoid risks; 7. It is necessary to develop new competition law rules that can sanction patent transactions that do not comply with the principle of proportionality, in order to rationalize licensing fees; 8. Must be able to file large-scale patent infringement or invalidation lawsuits against American companies in the United States or China.
