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03.03.17

East Asia is Known for Hardware Innovations, Not Software Innovations, and Software Patents Will Do the Latter No Favours

Posted in Asia, Patents at 8:59 am by Dr. Roy Schestowitz

By granting patents even on abstract concepts such as algorithms, China and Japan (but not Korea, which forbids software patents) leave India all the liberty to develop software without fear of ruinous lawsuits

“The day that the software sector forms a clear front against software patents, as pharma does for a unitary patent system… will be the day our cause comes close to winning.”

Pieter Hintjens, Fosdem07 Interview

Summary: China’s and Japan’s patent systems continue to be liberal on software patents, but this is actually a very bad thing which in no way favours software developers; it actively harms their work

“China’s IP office has released new guidelines that include a reduction in restrictions on software patents. Observers say it is not clear how big an effect it will have in practice,” Shaun Tan wrote from Hong Kong for MIP just hours ago. Hours earlier we had noted that China cannot help shooting itself in the foot with this policy. China’s interests are not served but harmed by this. Can they not see it? Who is advising them on these matters? Probably not software engineers but lawyers…

Published over a week ago, on February 21st to be precise, Adriana L. Burgy from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote this piece that mentions China’s patent policy. Prosecutors from Finnegan obviously try to maximise the damage caused by patents because to them it means profit. Who cares about coexistence and open cooperation (like sharing of code) anyway?

Here is a portion from Burgy’s article:

Excess claim fees are not new and are used in many patent offices worldwide. For example, the European Patent Office varies their claim fees for the 16th to the 50th claim and then, again for the 51st and each subsequent claim; when filing a request for examination, the Japanese Patent Office fee is directly proportional to the number of claims; and the Chinese Patent Office charges for claims in excess of ten. Here in the U.S., the basic filing fee includes three independent claims and a total of twenty claims. Today in our post-grant proceeding world, do we need to rethink the number of claims we use to cover an invention?

Another new article, this one about chemical patents, explains how it works in China. We read that with interest as we are trying to better grasp the differences between patent offices rather than rely on lawyers who have their own selfish agenda and belief (like faith, or religion) that more patents are always more desirable.

Here is IAM, part of the the litigation lobby, moaning that “[f]oreign patent owners face big hurdles when seeking to get damage awards and licence fees out of China”. To quote:

One consequence is that for foreign companies that win a court case in China, it has reportedly become very difficult to remit any damages they’re awarded back to headquarters. Normally, Chinese courts collect damage money from defendants and turn it over to the plaintiff’s lawyers. But if the winner is based overseas, its lawyers are going to have a very tough time exchanging the RMB award into a convertible currency. Chinese courts can also give damages directly to plaintiffs – if they are foreign companies, this involves asking currency authorities to convert the judgment into, say, Euros. The problem? “Very few courts are willing to risk gaining a reputation for readily sending money overseas,” says one China-based lawyer with first-hand experience of the issue. “Nobody wants to step out of line, and very soon infringers will be aware of that.”

So perhaps they should quit wasting time with the SIPO, where patent quality is so low that it will become impossible to distinguish between potent patents and waste of paper.

Japan, based on another new article, still grapples with the situation where employers take credit (and ‘ownership’) of employees’ ideas. Changes effective from the first of April 2016 (i.e. exactly one year before the above-mentioned changes in China) address that conundrum and the article explains the scenario as follows: “The Patent Law prescribed that a right to obtain a patent for an invention, which occurs when the invention is made by the inventor, is inherently vested in the inventor, on the grounds that only a natural person (not an artificial person such as a business entity) is eligible as an inventor.”

“That’s just happens when lawyers (or liars) use terms like “Intellectual Property”, lumping together copyrights, trademarks, patents, and even trade secrets.”So basically, there’s not much for mere employees, i.e. technical people, to gain from patents. It’s the lawyers and managers who seem to have an insatiable appetite for plenty of patents. They think differently. They, especially the management, probably don’t even know exactly what patents are and how they work; as for lawyers, they don’t comprehend the process of research and development. They never did any of that stuff!

“Can I protect my trademark through a patent?”

That’s an actual question from this article. That’s just happens when lawyers (or liars) use terms like “Intellectual Property”, lumping together copyrights, trademarks, patents, and even trade secrets. As long as politicians are mostly lawyers (not scientists) change and honest debates are merely a distant dream. Patent lawyers are to debates about innovation what oil companies are to debates about climate.

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