Chinese take to the courts to defend patent rights in US
Chinese companies have begun to defend their patent rights increasingly aggressively in US courts, legal experts say.
"Within the past year or two, the Chinese have begun standing up for themselves and testing the limits of intellectual property rights that are asserted against them," says Mark Hogge, a patent attorney at the law firm Greenberg Traurig. "They are learning the rules of engagement in the US marketplace and that includes intellectual property litigation."
ADVERTISEMENT
Some Chinese companies are even going on the offensive in the US for the first time, and filing their own patent lawsuits against US competitors.
This year, Netac, a manufacturer of computer flash memory products based in Shenzhen, China, brought a patent suit against a New Jersey rival in a federal court in Texas, in what is believed to be the first time that a mainland Chinese company has sued an American one for patent infringement.
"This could be a harbinger of things to come," says Tony Chen, a US-trained patent attorney in the Shanghai office of the US law firm, Jones Day. "Chinese companies are treating intellectual property lawsuits as an effective competition tool in the marketplace."
Tom Jarvis, a patent attorney at the US law firm Finnegan Henderson Farabow Garrett & Dunner, who practises before the US International Trade Commission (ITC), where many patent disputes involving China are heard, predicts that "within five years the number of patent litigations instigated by Chinese companies in the US will grow exponentially".
US companies can challenge the importation of Chinese products before the ITC, alleging that they infringe a US patent practiced by a US company. But Chinese companies can use the ITC too, he says, if they believe a US company is violating their patent rights in the US market.
He says China is increasingly the target of litigation at the ITC, with the number of claims against mainland Chinese companies multiplying rapidly since 2000.
Historically, Chinese companies did not aggressively defend themselves against such suits, usually agreeing to settle, design around the disputed patent, or fail to show up and lose by default.
"Over the past 10 years, patent owners have won in about half of ITC cases against Chinese companies, but in the other half, Chinese companies have either won, forced the patent owner to withdraw the complaint, or obtained an agreed-upon settlement," says Mr Jarvis.
"The Chinese are now at a place where they aren't taking the hit and are going to take a stand," says Mr Hogge. Like Japan, Korea and Taiwan before it, China is becoming more aggressive in protecting its intellectual property as Chinese industry becomes more sophisticated, moving away from copying foreign products and towards innovation.
The increasing importance of intellectual property to Chinese companies was demonstrated earlier this month by figures from the World Intellectual Property Organisation (WIPO), showing patent filings in China (half of them by Chinese) have increased sevenfold in the past 10 years.
Getting sued for patent infringement in the US is very costly, but it can have benefits, says Mr Chen. Chinese companies are increasingly realising "it may not be a bad thing to be a defendant in a lawsuit because we get free publicity".
中国企业找美国法官保护专利
法律专家表示，中国企业已经开始日益主动地在美国法庭保护自己的专利权。
GT律师事务所(Greenberg Traurig)的专利律师马克?霍格(Mark Hogge)表示：“过去一两年间，中国企业已经开始保护自己（权益），试探‘对自己不利的’美国知识产权限度，它们正在学习美国市场规则，其中包括知识产权诉讼。”
一些中国企业甚至首次在美国展开攻势，针对美国竞争者提起自己的专利诉讼。
今年，中国深圳的电脑闪存产品制造商朗科科技(Netac)在美国德克萨斯州一家联邦法院提起诉讼，指控新泽西州的一个竞争对手侵犯自己的专利权。据信，这是中国大陆企业首次以侵犯专利为由对一家美国企业提起诉讼。
美国众达律师事务所(Jones Day)上海办事处的专利律师陈炽(Tony Chen)表示：“这可能是一个预兆，中国企业正将知识产权诉讼当作一个有效的市场竞争工具。”陈炽是一位美国科班出身的专业律师。
美国律师事务所Finnegan Henderson Farabow Garrett & Dunner专利律师汤姆?贾维斯(Tom Jarvis)预期：“未来5年，中国企业在美国提起的专利诉讼案数量将呈现指数级的增长。” 贾维斯拥有美国国际贸易委员会(ITC)的执业资格。在该委员会处理的专利纠纷中有许多涉及中国。
美国企业可以向美国国际贸易委员会提起申诉，指控进口自中国的产品侵犯了美国企业的专利权。但他表示，如果中国企业认为某家美国企业正在侵犯其在美国的专利权，它们也可以利用美国国际贸易委员会作为法律武器。
他表示，中国正日益成为美国国际贸易委员会诉讼案的目标。自2000年以来，针对中国企业的诉讼数量迅速增长。
过去在遭遇此类诉讼的时候，中国企业并不会积极主动地维权。它们通常会同意与对方达成和解，并就具有争议的专利采取“回避设计”(design around)策略。有时则会因为没有应诉而输掉官司。
