Chinese Scholars Examine New US Patent Law

This was in my email this morning:

Remember the Indian newspaper article arguing that the patent reform measures being considered by Congress will make it easier for India's patent holders to enter the U.S. market? A similar story has now surfaced in China, this one written by one of that country's leading intellectual property experts.

The attached article was published in China Intellectual Property News on November 7, 2007, and has just been translated into English. Its author is Yongshun Cheng, former senior judge and deputy director of the Intellectual Property Division of the Beijing High People's Court. Cheng argues that the proposed patent reform bill is bad news for American innovation and good news for foreign infringers, pointing out that the bill "is friendlier to the infringers than to the patentees in general as it will make the patent less reliable, easier to be challenged and cheaper to be infringed."

He goes on:

"It is not bad news for developing countries which have fewer patents. Many of the Chinese companies are not patent owners in the U.S. market and their products are often excluded from the market because of patent infringement accusations. This bill will give the companies from developing countries more freedom and flexibility to challenge the relative U.S. patent for doing business in U.S. and make it less costly to infringe."

Cheng concludes by claiming that the proposed bill is in conflict with the U.S. government's practice of pressuring China to strengthen its own protection of intellectual property rights.

Cheng is the current director of the Beijing Intellectual Property Institute (BIPI). In 2003, he was nominated by Managing Intellectual Property as one of the 50 most influential IP figures worldwide and one of the top three in China.

An additional interesting part of the article is the authors suggest that China use the US law as a reference for the 3rd amendment of the Chinese patent law on the issue of damages. The authors write that the courts have too much discretion in determining damages because there is "no detailed provision both under the current Chinese Patent Law and its implementing Regulations." US law, on the other hand, is very clear about damages.

If you head to Philip Brooks' blog, you'll find a downloadable copy of the article in English.