Intellectual Property in China 知识产权与中国发展

Speech at ICBPS II

2008-12-09T11:27:00.007+08:00

Yesterday, I gave a presentation in English titled Draft Third Patent Law Amendment: Background, Major Changes, and Implications for China's Biopharmaceutical Industry at the Second International China Biopharmaceutical Symposium (ICBPS II).

实施知识产权战略推动自主创新

2008-10-08T16:56:00.009+08:00

登载于《中国发展观察》（国务院发展研究中心主办）2008年第10期（总第046期）。

转载：（1），（2），（3）。

《中国企业知识产权海外维权手册》出版了

2008-06-24T17:15:00.005+08:00

参与了《中国企业知识产权海外维权手册》一书的编写工作。

不过，最终版本采用我的文稿不是很多。

不管怎样，参与编写的过程（1）、（2）、（3）令人愉快。

Scholarly Publication and Copyright from MIT

2007-10-23T14:16:00.000+08:00

Retaining Copyrights to Increase Research Impact: Online Tutorial

Scholarly Publication - MIT Libraries

The tutorial is "intended to explain how copyright relates to publication agreements for research articles, and how authors can increase the impact of their work by negotiating to retain rights to post their articles on the web or reuse them in other ways".

I have the awful experience that scholarly articles cannot be accessed without subscription or membership privilege when I just wanna check or cite the original.

Digital technology makes open access easy, and a balanced relationship among authors, publishers, and the general public is not impossible.

Myths and Realities of IPR Protection in China

2007-09-27T16:41:00.000+08:00

From World Economic Forum Inaugural Annual Meeting of the New Champions 2007

Proposed Fund to Help IP Litigation

2007-09-26T13:49:00.000+08:00

By Jia Hepeng for Intellectual Property Watch

China Proposes Fund To Help Its Firms Fight IP Litigation

BEIJING - China is proposing a fund to help its enterprises cope with rising international litigation related to intellectual property rights (IPRs).

The message, together with other measures, was delivered by Zhang Qin, deputy director of the State Intellectual Property Office (SIPO) at a national corporate IPR meeting on 2 September, but it was not made public until 10 September.

Sun Pingping, a spokeswoman of SIPO, confirmed the news, saying the scale and detailed operation of the fund have not been finalised.

Zhang told the corporate meeting that international legal cases on IP that Chinese enterprises face have been growing. While some of the lawsuits arise from Chinese enterprises' poor IPR awareness and ownership, it is possible that some multinationals are abusing IPR to block the rise of Chinese firms, he said.

Together with the fund, SIPO will help some enterprises streamline their IPR strategies, organise patent examiners to provide patent searches and establish early warning services to prevent the potential patent infringements by Chinese companies.

The policies came amidst more multinationals suing Chinese exports for allegedly having copied their patented products.

German auto giant BMW, for example, claims a sedan of the Chinese firm Shuanghuan Auto copies its X5 and is suing the German company that imported the car.

Three years before, thousands of Chinese DVD players were confiscated by a German customs after they were accused by an alliance of electronics giants such as Matsushita, Toshiba and JVC to have used their patented technologies without authorisation. The DVD patent dispute ended with Chinese manufacturers agreeing to pay royalty fees up to US$8 for per DVD player, whose price has been lowered to US$40 as a result of severe market competition.

According to SIPO, by the end of 2006, the US International Trade Commission (USITC) had instituted 58 Section 337 investigations - a major US measure against infringement of IPR - against Chinese enterprises. In 2006 alone, there were 13 such cases, accounting for 39.3 percent of the total number of the Section 337 investigations USITC launched.

"Although many Chinese companies lack patents for their products, the patent barriers for their exports are not insurmountable," Sun told Intellectual Property Watch. She added that if Chinese companies are active in addressing the patent disputes they are entangled in, they might find some relevant patents are outdated while others could be overcome by slight revisions. "The fund could promote more Chinese companies to reasonably face international IPR charges," Sun said.

However, it seems to Zhao Chen, a patent examiner at SIPO, that the proposed fund of SIPO is not enough to help Chinese enterprises in dealing with the patent litigation.

"A patent lawsuit in the United States could easily spend $6 to 7 million, and the limited financial strength of SIPO cannot support such big spending for many enterprises," said Zhao. The proposed SIPO fund would mainly play a symbolic role, encouraging Chinese companies to cope with international legal challenges related to patents, he said.

Zhao revealed that with the help of the Ministry of Commerce, SIPO has already worked out a guidebook on international patent litigation for Chinese firms, containing messages from practical recommendations to the contact information of the major US and European patent law firms.

Despite the measures and the planned litigation fund, Zhao said Chinese companies that will actively respond to patent litigations would not be many.

"[Being involved in] any lawsuit is a result of balancing costs and benefits. The profit for Chinese manufacturers in the international market has already been very thin, and they would hardly insist on lawsuits for the small profit," Zhao told Intellectual Property Watch.

He added that to make Chinese enterprises more positively cope with international IPR lawsuits, the collective force coordinated by industry associations is very important, but now Chinese industry associations are still too weak and reluctant to organise the activities, partly due to the difficulty in sharing costs and benefits.

While welcoming the SIPO's move to help enterprises deal with IPR litigation, Chen Naiwei, director of the IPR Research Centre at Shanghai Jiaotong University, thinks the measures on foreign IPR litigation should not be prioritised.

"For a latecomer like China in the world of patents, the key issue is to help patent applications avoid or get around the barriers set by the existing patents and reflect added innovation," said Chen. "Only in this way, the possible subsequent lawsuits can have a substantial basis."

This work is licensed under a Creative Commons License.

Online Games Alliance Against Piracy

2007-09-14T14:52:00.000+08:00

Online game companies form anti-piracy group

The Alliance Against Piracy will propose industry-wide policies and practices and lobby lawmakers to enact anti-piracy legislation. The Beijing-based alliance also includes four Korean game makers and an Icelandic firm.

CDC Games and Leading Game Developers Form Alliance to Protect Online Game Industry from Piracy

What interests me is that CDC Games has reportedly helped the China government convict two operators of "piracy for profit" of one of their online fantasy games, resulting in criminal convictions including prison sentences and fines.

"The first case, known as the 'Tianzi case' involved a private server operator that was running illegal copies of the MIR III game online. The conviction of the operator included the seizure of all their equipment and a three-year prison sentence.

The second case, known as the '007 case', recently concluded in August 2007 with a six-year prison sentence and a fine of US $67,000. In this case, the operator was running an illegal macro program that allowed players to purchase online game merchandise such as special powers and weapons. "

Compulsory Licensing of Patents

2007-09-14T14:01:00.000+08:00

James Packard Love, Knowledge Ecology International Research Note:
Recent examples of the use of compulsory licenses on patents

"This paper reports on a number of recent examples of the use of compulsory licenses, in both developed and developing economies. The examples cover a wide variety of technologies, legal mechanisms, and grounds for non-voluntary authorizations to use patents."

As regards China, it used the threat to a compulsory license to obtain voluntary licenses to manufacture generic Tamiflu in 2005.

植物新品种保护收费大幅降低

2007-09-10T16:48:00.000+08:00

国家发展改革委、财政部关于调整植物新品种保护权收费标准有关问题的通知

“农业部、国家林业局在受理、审查和授予植物新品种保护权时，向申请人分别收取植物新品种保护权申请费、审查费、年费的收费标准调整为：

植物新品种保护权申请费，每个品种由1800元降为1000元；审查费每个品种由4600元降为2500元；在保护期内，年费为第1-6年每年1000元、以后每年1500元。除此之外，农业部、国家林业局不得再向申请人收取测试费等其他任何费用。”

发改委：植物新品种保护收费大幅降低

“国家林业局植物新品保护办公室周建仁处长介绍，我国的植物新品种保护收费标准比专利权收费要高，收费标准甚至高于一些花卉产业发达国家。相反，我国的植物新品种在市场的售价又普遍低于国外市场。这种状况致使我国新品种保护数量偏低。

根据全国人大代表的提案，国家发改委、农业部和国家林业局相关部门组成调研组进行专门调研认为，我国新品种保护收费标准确实偏高。”

No to Patent Reform on Youtube

2007-09-07T19:24:00.000+08:00

Innovation vs Monopoly - "NO" on current patent changes

Dennis Crouch, Associate Professor of Law of University of Missouri, asked such a question: "Can Apple & Microsoft combine forces to create a better video about the harms caused by today’s patent laws - and will they allow it to be posted on youtube?"

Different Perspective

2007-09-06T15:50:00.000+08:00

How Adidas' IP Enforcer Kicked Counterfeiting in China: Athletic shoe maker's Asia IP guru says he doesn't have a counterfeiting problem in China - what's he doing right?

"While its competitors continue to focus on raiding factories, Adidas has increasingly targeted retailers and wholesalers. Adidas' China-based in-house lawyers work with the business side to make shoes harder to copy (by using a state-of-the-art label), and with outside investigators to build cases and prod government enforcement. It's all done on an annual budget of less than $1 million."

"However, raids are just part of Adidas' in-house IPR approach. 'If you're only thinking about raiding,' Ray Tai, head of Adidas' intellectual property rights enforcement in Asia, says, 'you, as a lawyer, are not doing your job.' Attorneys should be preventing problems as well as solving them, he observes."

I concur.

Anti-Monopoly Law of the PRC Comes

2007-08-31T10:00:00.000+08:00

中华人民共和国反垄断法

China Passes Antitrust Law, to Scrutinize More Deals：

"Whether the law makes foreign investors' lives more difficult depends on how it's implemented, Jonathan Palmer, regional managing director for U.S. law firm Heller Ehrman LLP said. 'Where the rubber meets the road is in the enforcement,' he said. 'At the moment, we don't know how it's going to be enforced. But overall the law is a significant step forward and is in compliance with international standards.'"

中国新反垄断法引来种种疑问

于泽远：明年八月实施国企和跨国企业将受反垄断法遏制

何禹欣：中国反垄断虚多实少

“虽然立意甚高，《反垄断法》在中国到底能达到什么样的效果，令人存疑。就法条本身而言，留待解释空间太大，可操作性很差。中国美国商会认为，新法亟需得到多种配套法规的阐释，其中便包含了对交易进行竞争和国家安全审查的程序，和美国尤其关心的对滥用知识产权如何定义及惩处。一位中国法律专家指出，中国已具备最完备的知识产权法和环境保护法，但执行效果却聊胜于无。”

第五十五条　经营者依照有关知识产权的法律、行政法规规定行使知识产权的行为，不适用本法；但是，经营者滥用知识产权，排除、限制竞争的行为，适用本法。

Article 55 deals with the abuse of the IPRs, applicable to the undertakings that eliminate or restrict market competition beyond the laws and administrative regulations on intellectual property rights.

The three major intellectual property laws in China, namely, Copyright Law, Patent Law, and Trademark Law, are directly impacted by the Anti-Monopoly Law.

More info about the Law is available here.

《科学技术进步法（修订草案）（征求意见稿）》

2007-08-29T20:43:00.000+08:00

法制办就科学技术进步法（修订草案）征求意见

万钢：四大原因催生科技进步法修订草案

修改或补充的内容多次涉及知识产权：

第八条　国家建立和完善知识产权制度，营造尊重知识产权的社会环境，激励自主创新。

第二十八条　国家通过财政、税收、金融、外汇等政策，引导和扶持创业风险投资机构对高新技术产业进行投资。

国家通过建立创业板股票交易市场和引导、规范技术产权交易等措施，建立和完善促进自主创新的多层次资本市场体系。

第三十一条　国家培育和发展技术市场，引导建立社会化、专业化和网络化的技术交易服务体系，鼓励创办从事技术评估、技术经纪等活动的技术交易服务机构，推动科学技术成果转移和应用。

第三十四条国家采取措施鼓励企业研究开发新技术、新产品、新材料、新工艺，组织开展合理化建议、技术改进和技术协作活动，进行技术改造和设备更新，吸收和开发新技术，创造、管理、保护、运用知识产权，提高产品、服务质量，在市场竞争中创立知名品牌，提高劳动生产率和经济效益。

第三十九条　国家政策性金融机构应当对国家规定的自主创新项目给予重点支持；国家利用基金等方式，为贷款提供贴息、担保，引导商业金融机构支持企业自主创新与企业技术产业化。

国家鼓励金融机构开展知识产权质押业务。

第四十二条　制定政府指导价和政府定价，应当平等对待国内、国外企业拥有知识产权的产品、服务，不得歧视。

第四十三条制定国家标准和行业标准应当吸收企业参加。

国家鼓励企业在市场竞争中通过技术创新形成企业标准，支持企业参与国际标准的制定。

第六十九条利用财政性资金设立的科学技术基金、科学技术计划项目的管理机构，应当对项目实施情况进行抽查、验收；抽查、验收时应当查看项目实施情况的原始记录。

除影响知识产权保护和国家秘密的保守的情形外，利用财政性资金设立的科学技术基金、科学技术计划项目的管理机构应当及时向社会公布抽查或者验收结果、项目产生的研究成果及其相关信息，公众有权查阅。

第七十条除国家另有规定或者合同另有约定的外，实施利用财政性资金设立的科学技术基金项目、科学技术计划项目产生的知识产权，由项目承担者享有；特殊情况下，国家可以无偿使用或者指定单位有偿使用。

项目承担者对项目产生的知识产权应当及时采取保护措施，加以运用，并就知识产权运用情况向项目管理机构提交年度报告。自知识产权取得之日起2年内，项目承担者未运用知识产权的，该知识产权归国家所有。

第七十一条　利用财政性资金设立的科学技术基金项目、科学技术计划项目产生的知识产权，向境外的个人和组织转让应当经国务院科学技术行政部门批准。

第七十八条　国家建立科学技术保密制度，实行科学技术保密工作责任制，建立健全科学技术保密补偿机制，加强对重大科学技术项目秘密事项及相关人员参与国际交流和合作的管理，保护涉及国家安全和公共利益的科学技术秘密。

国家严格控制珍贵的生物种质资源、遗传资源以及其他重要资源出境。

Property Rights and Patent Reform

2007-08-28T18:10:00.000+08:00

The Progress & Freedom Foundation Aspen Summit 2007 -

Panel Discussion: Property Rights and Patent Reform

Protecting IP in China

2007-08-27T19:39:00.000+08:00

The Stanford Program in Law, Science & Technology, Orrick, Herrington & Sutcliffe LLP, and the Stanford Law Society of Silicon Valley present: Protecting IP in China (August 15, 2007)

中国知识产权法官代表团在美国斯坦福大学交流中国最高法院近年来审判的部分重要案例

Some highlights:

1. Ningbo Oriental Movement Factory vs. Jiangyin Jinling Hardware Co., Ltd. for retrial for patent infringement - the first case of the SPC to which the doctrine of equivalent was applied.

“When determining the protection scope of patent right, neither the protection scope of patent right should be limited to the rigid literary meaning of the Claims, nor the Claims be taken as just a technical guideline which can be explained freely. The protection scope of patent right for invention and utility model contains two aspects: (1) the scope determined by the indispensable technical features recorded in the Claims; and (2) the scope determined by the features equivalent to the indispensable technical features, i.e., comparing to the corresponding technical feature in the Claims, and by the basically same method, a technical feature can realize the basically same function and produce basically same effect, of which an ordinary person skilled in the art can take no creative effort to conceive. ”

2. Dalian Xin Yi Building Materials Co., Ltd. vs. Dalian Renda New Materials of Wall Factory for retrial for patent infringement - the SPC clearly denied applying the so-called “principle of superfluity establishing”.

“All the technical features that the patentee wrote in the Independent Claims are the indispensable technical features, which can not be ignored; therefore, these technical features should be brought into the comparison of technical features. This Court does not agree to use the so-called 'principle of superfluity establishing' recklessly. …… The public will be at a loss because of the unpredictable change of the contents of the patent. All technical features recorded in the Claims should be considered roundly and adequately, which could guarantee the stability of the legal rights, and guarantee the normal operation and the realization of the value of the patent system.”

3. Founder Group, etc. vs. Gao Shu Tianli Technology Co., Ltd., Gao Shu Technology Co., Ltd. for retrial for infringement of copyright of computer software - the SPC clarified issues for the legality of entrapped evidence in this case.

“In civil litigation, illegal activities have been explicitly defined by laws. However, despite of these explicit illegal activities and in the light of the universality of the social relationship and the complexity of the relationship of interests, laws do not exhaustively list all the activities that might be illegal. Laws authorize the judges the jurisdictional power to determine what kind of activities are illegal according to the balance of interests and the orientation of value. Therefore, with respect to those activities from which laws do not explicitly prevent, whether they are illegal or not could mainly be determined by their substantial justification.

For the current case, through the way of notarization, Founder has not only obtained evidence showing the whole process that Gao Shu installed the pirate copy of Founder’s computer software, but also has obtained evidence showing that Gao Shu sold pirate software to its other clients, and evidence or evidence clue on Gao Shu’s infringing activities of the same kind. The intention of Founder to obtain the above evidence is of justification. And these activities did not harm the public interests or other’s legal rights and interests as well.

In addition, the infringing activities against copyright of computer software feature high degree of concealment. It is also difficult to obtain related evidence. The entrapped evidence approach in this case is thus helpful to resolve the above problems. It also has effects on deterring and restricting such infringing activities, which meets the spirit of laws to legally protect the intellectual property.”

薛兆丰：知识产权与反垄断

2007-08-27T11:13:00.000+08:00

薛兆丰：知识产权与反垄断，2007年8月27日《经济观察报》“解释反垄断”专栏系列（之十八）

确实，“芝加哥学派”，张五常，CARL SHAPIRO，Richard J. Gilbert的相关论著，Antitrust Guidelines for the Licensing of Intellectual Property (April 1995), Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (April 2007), 都是认识知识产权与反垄断的好读物。

WIPO PATENT REPORT 2007

2007-08-22T11:21:00.000+08:00

WIPO PATENT REPORT 2007 - Statistics on Worldwide Patent Activities

Some highlights in this report:

1 Very high growth rates in patent filings by applicants from North East Asian countries, particularly Korea and China. It is clear that this is a process that is ongoing.

2 Filings of PCT international applications from Korea and China have grown significantly since 2002, to the point where both countries are now within the top ten of origin of PCT international applications.

3 China’s ranking on Indicators of Patent Intensity, which compare patent filings with other indicators, namely population, GDP and R&D expenditures, remains low. These indicators allow for more meaningful cross-country comparisons by weighting the number of patents by different measures of country size and economic activity.

4 The increase in patent filings from newly industrialized countries does not yet translate into ownership of patent rights internationally by applicants from those countries. Of the approximately 5.6 million patents in force in 2005, 49% were owned by applicants from Japan and the United States. The major European countries are also strongly represented in ownership of patent rights.

5 Patent applications filed in the field of electricity and electronics represented 35% of worldwide patent filings between 2000 and 2005. Patent filings in this technology field are concentrated in the patent offices of Japan and the United States followed by Korea, the European Patent Office and China.

ECONOMIST: Benchmarking IT industry

2007-08-22T09:37:00.000+08:00

A report from the Economist Intelligence Unit: The means to compete - Benchmarking IT industry competitiveness

“The purpose of the IT industry competitiveness index is to compare countries in different regions of the world on the extent to which they possess the conditions necessary to support a strong IT industry. To achieve this, the Economist Intelligence Unit has built a benchmarking model which scores individual countries on the key attributes of a competitive IT sector.”

There are six categories of indicator used in the index. Among them stands the legal environment category, which includes comprehensiveness, transparency of IP legislation, adherence to treaties; enforcement of IP legislation; status of electronic signature legislation; status of national data privacy and anti-spam laws; and status of national cyber-crime laws.

Selected legal environment category scores are: United States 92.0; United Kingdom 88.5; Ireland 88.5; Germany 85.0; Japan 79.0; South Korea 66.0; China 49.0; India 48.0; Russia 38.5.

Some China-related views expressed in the report concerning IPRs:

Miller, Stanford University: “Companies complain about IP a lot but they still go there, and they protect themselves. They compartmentalise information so no one person can walk out the door with the complete story.”

Kagermann, SAP: “As China's homegrown companies begin to innovate, IP protection will be more rigorously enforced.”

Keith Collins, SAS: “They (MIT and Standford) no longer try to take an up-front value out of the IP - they take the risk of whether that IP will succeed in the marketplace, which makes it more likely that an entrepreneur can pick it up and succeed with it. Many universities have tried to drive revenue from IP, and that’s been a mistake.”

尹明善谈专利

2007-08-21T13:18:00.000+08:00

知识产权政府门户网站专题在线访谈：“完善地方专利法规，推行创新型城市建设”

重庆市政协副主席、力帆集团董事长尹明善：

“政府采购的时候要采购有自主知识产权的产品，一个企业研发新产品要打开市场的时候，我觉得政府采购要予以支持。”

“我认为有一个误区就是都认为所有的企业必须要努力搞一些专利技术，事实上绝大多数的中小企业是不可能的，他们是心有余而力不足，他们只有那么一点资金、那么一点科技力量，怎么来创造那么多的专利。”

“中国是一个发展中国家，中国有这么多弱小的中小企业，如果身为中国的官员、身为中国的知识产权保护的干部和立法者、实施者，不正视中小企业的弱小、不正视强国运用只对他们有利的东西欺压咱们中国这样的发展中国家，如果不奋力保护，我们就是傻瓜，我们永远就是一个发展中国家。”

“说到中国摩托车，包括重庆的摩托车，说80%都是仿造日本的，这个话我要做一个澄清。为什么呢？在80%中有99%是非专利技术，是专利保护期已经过了的技术，我们怎么不能用呢？比如说在全中国、重庆大量生产的CJ125的型号，这个原创来自日本，可是日本已经卖了20、30年了，人类的科学技术要发展，专利的保护一定有期限，不然就没有发展了。所以这里必须要澄清，不但中国的摩托车企业、绝大多数制造业都扣上了一个仿造、侵犯知识产权的帽子，这个不公正，他们的保护期过了，有的甚至是老祖宗的技术。”

“要理智的是，千万不要被人家吓住了，哪里有那么多的仿制呢？我们真正要为发展中国家说话，要呼吁世界各国把发明专利保护期缩短。因为信息时代，科学技术的发展很快，一个芝麻大的技术要保护10、20年这个合理吗？”

“在一次全国政协会议上我写了一个提案，我们国家专利申请的费用和国家的人均GDP不相称，太高昂了。就是申请多少钱、保护一年多少钱，像力帆这样的企业，每年要花几百万。我作为政协委员的一个提案希望缩减。”

U.S. Requests WTO Panel in China's IPR Case

2007-08-14T14:13:00.000+08:00

United States Requests WTO Panel in Case Challenging Deficiencies in China’s Intellectual Property Rights Laws

"First, the request challenges quantitative thresholds in China’s criminal law that must be met in order to start criminal prosecutions or obtain criminal convictions for copyright piracy and trademark counterfeiting. Wholesalers and distributors are able to operate below these high thresholds without fear of criminal liability, so these thresholds effectively permit piracy and counterfeiting on a commercial scale.

Second, the panel request addresses the rules for disposal of IPR-infringing goods seized by Chinese customs authorities. Those rules appear to permit goods to be released into commerce following the removal of fake labels or other infringing features, when WTO rules dictate that these goods normally should be kept out of the marketplace altogether.

Third, the panel request addresses the apparent denial of copyright protection for works poised to enter the market but awaiting Chinese censorship approval. It appears that Chinese copyright law provides the copyright holder with no right to complain about copyright infringement (including illegal/infringing copies and unauthorized translations) before censorship approval is granted. Immediate availability of copyright protection is critical to protect new products from pirates, who – unlike legitimate producers – do not wait for the Chinese content review process to be completed."

"The U.S. panel request will be considered by the WTO Dispute Settlement Body at its next meeting, which is scheduled for August 31."

Productivity in Patent Offices

2007-08-09T11:05:00.000+08:00

Ernst & Young: Benchmarking Project – Productivity of the EPO, UKIPO & DPMA

Managing Intellectual Property: EPO productivity woes revealed

“Ernst & Young in cooperation with Management Team has been engaged by the European Patent Office (EPO) to conduct a benchmarking study on the productivity of the EPO and the national patent offices UKIPO (United Kingdom) and DPMA (Germany). This benchmarking study included the comparison of legal environments, the comparison of the patent granting processes and the analysis of productivity, measured by ‘time per action’-type of indicators, and productivity drivers, measured by specific key performance indicators. The analysis found that EPO’s productivity falls significantly behind the level of the national offices and identified a 50% difference in productivity between the EPO and the national offices. This difference is to some extent caused by the methodical features, since effort for written opinions and the involvement of the examining division cannot be properly accounted for. The total effect of these features and eight other explanatory factors may explain a productivity difference of 35% – 45% with two factors remaining that may be able to explain the residual.”

A detailed analysis of quantitative data on the patent granting process, the core of the project, is performed, including development of a methodology for measuring and comparing productivity, as well as findings of the root causes of the identified differences.

The statistics of certain productivity measures, such as time per product, time per communication, and of certain productivity drivers, such as experience of patent examiners, sickness days, adequacy of initial file allocation, communication per grant/refusal/withdrawal, oral proceedings per grant/refusal/withdrawal, are all of value.

The benchmarking results and recommendations are also applicable to SIPO to a great extent.

Grant rates in the patent office

2007-08-08T09:41:00.000+08:00

MARK A. LEMLEY, BHAVEN N. SAMPAT: Is the Patent Office a Rubber Stamp?

"While it grants patents to more than two-thirds of those who apply, the USPTO is not a rubber stamp. It rejects a small but non-trivial percentage of applications (15-20%), and more applications are abandoned for business reasons. …… Further, in a significant number of cases – around 40% of those that issue – the prosecution process requires the applicant to amend the claims, presumably generally to make them narrower.”

“We also find that the likelihood of obtaining a patent varies significantly by industry in surprising ways. For example, patents are much more likely to be granted in the chemical and pharmaceutical industries than in software and computer fields.” “Overall, those industries that are most identified with bad patents (computer software, hardware, and business methods) turn out to be those with the lowest grant rates.”

“Our findings certainly suggest that debates about patent system reform need to move beyond a narrow focus on the grant rate. They also suggest that published patent application data and PAIR transaction/status data are a rich and unexplored source of information for examining the law and economics of the patent system, and firm and industry level patent strategies.”

Notes 1: The grant rate statistics of USPTO is similar to that of SIPO, according to my observation.
2: SIPO lacks a database system like PAIR, which limits its further capacity building.

My humble translation for Asia Business Intelligence

2007-08-08T09:26:00.000+08:00

Asia Business Intelligence:

Guangdong Court Applies Hong Kong Law in Commercial Lease Dispute

India Rejects Novartis's Gleevec Patent Bid

2007-08-07T15:45:00.000+08:00

Bloomberg: Novartis's Gleevec Patent Challenge Rejected in India

"The patent for Gleevec/Glivec - granted in nearly 40 countries, including Russia and China - was denied in India in 2006. ……Novartis said it probably won't appeal today's decision to the country's supreme court."

SciDev.Net: Victory for generics in Indian patent case

"Leena Menghaney, from the India office of MSF, told SciDev.Net that India sets an example to the rest of the developing world in setting standards for TRIPS and safeguards to protect the rights of access to treatment for the poor."

Novartis concerned Indian court ruling will discourage investments in innovation needed to bring better medicines to patients:

"1 Court dismisses Novartis petition challenging constitutionality of Section 3(d); defers to World Trade Organization (WTO) to resolve question on TRIPS compliance;
2 Gleevec/Glivec patent appeal not decided; Intellectual Property Appellate Board (IPAB) review continues as separate proceeding."

Section 3(d) of The Patents Act of India states:

"The following are not inventions within the meaning of this Act, - (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

Explanation - For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy."