November 16, 2011
According to Patent strategy aims to further boost innovation, China Daily, November 16, 2011, the Chinese Government, released yet another plan to increase the quantity and quality of patents by Chinese companies in Beijing on November 9, 2011 . The plan was followed by a technology fair to publicize the plan’s goals. This plan includes the formation of patent pools: “Under the national plan, around 30 patent pools from industry associations will be founded over the next year that will allow member companies and organizations in the same industry to cross-license patents, with leading companies expected to play a major role.” In addition, the Government’s plan calls for more resources to assist Chinese Companies in obtaining, enforcing and defending against patents in other countries: “The program also plans to assist in international patent and trade disputes. Authorities have been helping Chinese companies apply for patents overseas and will provide aid to help protect their intellectual property on the world market. The system will include guidance, analysis and patent warnings for Chinese companies doing business overseas.”
Meantime, back in the U.S. of A., we have in the last few weeks, seen Federal Circuit Judges split over whether to take cases to clear up what the Judges themselves say are conflicts and confusion on important legal issues for U.S. patent value and enforcement: The standards for preliminary injunctions, see dissents from denial of petition for rehearing en banc in Kimberly Clark v. First Quality, 2010-1382, September 29, 2011, and dissents on recent denial of rehearing en banc on claim construction. See prior post on Retractable Technologies Inc. v. Becton, Dickinson & Co. We have seen the Federal Circuit make clear recently that patent infringement carries no presumption of irreparable harm. See prior post on Robert Bosch LLC v. Pylon Manufacturing Corp. The AIA has adopted measures designed to make it more difficult for patent owners to enforce their patents against multiple infringers, 35 U.S.C. Section 299, and changes to post grant review and inter partes procedures that are intended as much to encourage more stays of litigation as well as improve the process. See presentation posted on Multi-Defendant Patent Litigation After the AIA.
So here are my questions, 1) given that the government of China is managing its economy and patent system to improve the patent position of Chinese companies at home and elsewhere, will the balance of patent power tip against U.S. companies? 2) Should U.S. companies be stocking up on patents in other jurisdictions where the time and cost of enforcement, as well as the definition of the patent right, are either more predictable or less problematic (or both)? 3) Does the U.S. need to pull out of the confusion over claim scope (claim construction) and preliminary injunctions, as well as make enforcement more predictable in results and time, to be competitive? 4) Are we at a tipping point?
These are questions for the business, legal, academic, and political communities to ask and discuss — not in light of the annoyance of any particular problem — but in light of where we as a country are headed….It is time to put aside partisan views and to look at the big picture.