08.26.17

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Patent Exhaustion and Implosion Will Follow Patent Maximalism in the Far East, But Low-Quality Patents May be Strategic

Posted in Asia, Patents at 4:58 pm by Dr. Roy Schestowitz

This is already happening in the US quite a lot

Patent Exhaustion

Summary: Patents that are being granted in spite of weakness in courts (lacking legitimacy/merit) help increment overall patent counts but not innovation and therein lies a long-term bargaining strategy that’s antithetical to the real (or original) purpose of patents

ONE key trend we have been covering several times so far this year is the hostility of Japanese courts towards weak patents, such as software patents. Japan has, traditionally, been relatively friendly toward such patents. Is that ending? Is JPO merely pulling a ‘poker face’?

“Japan has, traditionally, been relatively friendly toward such patents. Is that ending?”Writing from Honk Kong, one law firm from the region ignores or sidesteps the ban on software patents in India. Having documented the lies or spin from law firms operating in the region, we are hardly surprised to see more of the same. Here is an important admission:

India has a new set of guidelines for examination of computer-related inventions that are more favourable to patentees. But Indian IP practitioners see ambiguities that may lead to unsuitable patents being granted

It’s quite likely that Indian courts would not tolerate any software patents (even if these got granted by examiners). It’s the same situation as in the US post-Alice.

Why is such old news being revived by software patents hopefuls that never wrote any software? Well, just look who published it. It’s Managing IP. It also promotes the EPO‘s pet illusions. Managing IP has in fact just reposted this article about Singapore belatedly realising patent quality matters. Will they ever learn? Will the EPO ever learn too?

“It’s quite likely that Indian courts would not tolerate any software patents (even if these got granted by examiners).”Over at Lexology, a site for law firms, a law firm has just stated: “On April 1, with its recent guideline changes, the Chinese Patent Office lowered the bar of patentability for software and business method patents.”

Well, we wrote a lot about that at the time. Why bring that up all of a sudden? There was another one from Lexology at around the same time and it said:

As more and more innovators in China have developed new business models by making use of computer science and internet technology, patent protection of software-related inventions has become one of the hottest topics in the intellectual property field in this country. For example, the concept of “Internet Plus” has been very popular in the recent two years, which means utilizing internet technology to improve the business models of traditional services, and whether to and how to protect such new business models with patents has caused many discussions in China. On this background, the Guidelines for Patent Examination and related patent examination practice have been updated to meet the increasing demands for protecting software-related inventions, and now there is an unprecedented friendly environment for patent applications involving software and especially business methods.

Like we showed before, China would happily grant patents on just about anything; patent quality there is a laughing stock and probably a call for patent trolls. If they cared much for the Chinese market…

“They’re collectors rather than inventors.”But we have a theory about this; China isn’t misguided, it’s just thinking of a defensive strategy against the US. There are many reports about Trump’s “IP”-themed assault on China and IAM too wrote about it (this was the subject of mainstream media coverage too). Now that China receives about a million patent applications per year it can simply play a numbers games and pretend that its many shallow patents (granted by SIPO) stand up against or cancel out USPTO patents. Maybe this was the thinking and the strategy all along. Maybe china has been piling up lots of useless, worthless, bogus patents (even giving incentives for people to pursue these) just because quantity matters to them, much like in the US patent system. They’re collectors rather than inventors. The above article says that “the Chinese Patent Office lowered the bar of patentability for software and business method patents.”

Well, obviously, but how many of these are actually enforceable in court? Probably close to nothing.

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