Tian Lipu, commissioner of the State Intellectual Property Office (SIPO) visited Samsung, according to the China Daily. Mr Tian was told by the Keun-Hee Park, president of Samsung's operations in China that patent trolls were on the rise. One can argue that a patent troll, or more neutrally called a non-practising entity (NPE) abuses its intellectual property: the patent is only used to enforce or threaten to enforce it via litigation. This way, they do not create added value to society, because (except for lawyers and magistrates) and form an obstacle to research and/or manufacturing of some product.
According to PatentFreedom, a website providing research on and strategy about NPEs, Samsung has been relentlessly pursued and ranks sixth by the number of NPE lawsuits it was involved in in 2009. See the list at the site of PatentFreedom here.
Mr Tian was quoted saying: "Since the Chinese government adopted a national intellectual property strategy in 2008, fighting such inappropriate use of patents has been listed as one of five top priorities on our agenda."
If one reads Article 4 (Preventing Abuses of IPRs) of Chapter III Strategic Focus of the National Intellectual Property Strategy 2008 you will see: (14) Formulate relevant laws and regulations d to reasonably define the scope of intellectual property. Prevent abuses of intellectual property. Maintain fair market competition. Safeguard the public lawful rights and interests.
The fact that Samsung founded a special intellectual property team was praised by Mr Tian. It is "of demonstrational significance" to Chinese companies, according to Mr Tian. Whether Samsung's example will be followed remains to be seen.
Read the China Daily article here.
UPDATE: Anonymous wrote a very interesting comment:
"As many Chinese commentators have noted, what constitutes patent "misuse" or "abuse" is unclear in China. Also, what constitutes an "NPE" or "troll" or (in Chinese) "cockroach" is also unclear. If it is simply a "non-practicing entity" then all research institutions may be trolls. The concept of "abuse" in Chinese (lanyong) likely encompasses "abuse" under the Chinese antitrust law (Art. 55) and may also encompass "misuse" - which is typically a defense to infringement and not an affirmative claim in the US. Moreover, there are aspects of the issue which involve patent examinations/grants/novelty requirements and patent litigation (damages/availability of injunctive relief). A country, such as China can have a relatively high level of NPE's (or non-service inventions), esp. in patents that are not examined for substance (utility model and design patents), or in patents that were once examined only on grounds of "relative novelty" (under the former patent law), but the patents may have a low value for litigation (damages or injunctions, or preliminary injunctions). Moreover, there may be limited means of compensating a victim for abusive assertion of rights - under US "Walker Process" type remedies, or "Rule 11" or other doctrines."
1 comment:
As many Chinese commentators have noted, what constitutes patent "misuse" or "abuse" is unclear in China. Also, what constitutes an "NPE" or "troll" or (in Chinese) "cockroach" is also unclear. If it is simply a "non-practicing entity" then all research institutions may be trolls. The concept of "abuse" in Chinese (lanyong) likely encompasses "abuse" under the Chinese antitrust law (Art. 55) and may also encompass "misuse" - which is typically a defense to infringement and not an affirmative claim in the US. Moreover, there are aspects of the issue which involve patent examinations/grants/novelty requirements and patent litigation (damages/availability of injunctive relief). A country, such as China can have a relatively high level of NPE's (or non-service inventions), esp. in patents that are not examined for substance (utility model and design patents), or in patents that were once examined only on grounds of "relative notvelty" (under the former patent law), but the patents may have a low value for litigation (damages or injunctions, or preliminary injunctions). Moreover, there may be limited means of compensating a victim for abusive assertion of rights - under US "Walker Process" type remedies, or "Rule 11" or other doctrines.
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