Futuríveis
segunda-feira, março 07, 2005
China: Whose Patent Is It, Anyway?
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The issue of intellectual property theft has been a fixture on the trade agenda between the United States and China for years, with visiting American officials routinely stopping at the famous Silk Market in Beijing to highlight the sale there, like all over China, of cheap knockoffs of toys, clothing, software and DVD's.
The Chinese government has recently razed the market, but the counterfeit activity has been moving relentlessly upscale, with General Motors, Cisco, Sony and Pfizer, just to name the most high-profile companies, complaining that their designs or formulas for everything from cars and PlayStations to routers and Viagra, have been violated.
"Until recently, when China began putting intellectual property laws in place, for the past 40 years, all patents were owned by the government, and could be shared by any company that was willing to use them," said Paul Gao, a Shanghai-based expert on consumer electronics and automotives at McKinsey & Company. "The Chinese government actually encouraged this, and that has left a deep impression on companies that intellectual property is there for anyone to use it."
Experts say the practice of copycat production is also fueled by the fierce competition among Chinese companies and provinces to join the global economy. "With the extreme fragmentation of industry, you see a lot of subscale players that are trying to survive in the market on their own," Mr. Gao added. "They don't have the budget for research and development or the scale to compete. If they pay a licensing fee, they consider they are essentially imposing a death penalty on themselves."
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Lawyers who represent Western companies embroiled in intellectual property disputes in China, however, point to major loopholes in Chinese law and in the country's trademark and patent system as parts of the problem. Many Chinese patents, for example, are granted without any examination of their originality, making it easy for local companies to claim others' innovations as their own.
While foreign experts also point to progress in the country's courts and especially in the richer provinces along the country's east coast, they say that local and provincial governments, eager to bolster their economies, sometimes subsidize patent filings for local companies and provide pointers to them on how to beat foreign claims of infringement. Even the Shanghai government speaks of building a "great wall of patents" to protect local companies.
"Once upon a time, the counterfeiters in China ran away when you came after them," said Xiang Wang, a lawyer specializing in intellectual property rights at White & Case in Shanghai. "Today, they don't run away. Indeed, they stay put and they sue us. More and more Chinese companies are taking a so-called legal approach, taking advantage of serious weakness in the Chinese legal system."
One of the most problematic areas, experts say, are joint ventures between foreign and Chinese companies, which are legion. When the joint venture dissolves, or sometimes even while it remains active, the Chinese party makes use of the technology or manufacturing processes illegally. A perennially told war story in business circles here involves the foreign factory owner who makes a wrong turn while driving to his plant only to discover an exact copy of his factory on the other side of the mountain.
Although this story might be apocryphal, Mr. Wang said he saw cases all the time that are not so different in their details. "We have a client in the power business who found that one of his key employees had quit and joined a competitor, revealing confidential information to him straight away, and filing patents of these materials which were literal copies of the original technology," he said. "When our client warned he would sue over patent infringement, the Chinese company said it was also planning to sue. 'And by the way,' they asked, 'what patent are you talking about? This is our patent now.' "
The New York Times
The issue of intellectual property theft has been a fixture on the trade agenda between the United States and China for years, with visiting American officials routinely stopping at the famous Silk Market in Beijing to highlight the sale there, like all over China, of cheap knockoffs of toys, clothing, software and DVD's.
The Chinese government has recently razed the market, but the counterfeit activity has been moving relentlessly upscale, with General Motors, Cisco, Sony and Pfizer, just to name the most high-profile companies, complaining that their designs or formulas for everything from cars and PlayStations to routers and Viagra, have been violated.
"Until recently, when China began putting intellectual property laws in place, for the past 40 years, all patents were owned by the government, and could be shared by any company that was willing to use them," said Paul Gao, a Shanghai-based expert on consumer electronics and automotives at McKinsey & Company. "The Chinese government actually encouraged this, and that has left a deep impression on companies that intellectual property is there for anyone to use it."
Experts say the practice of copycat production is also fueled by the fierce competition among Chinese companies and provinces to join the global economy. "With the extreme fragmentation of industry, you see a lot of subscale players that are trying to survive in the market on their own," Mr. Gao added. "They don't have the budget for research and development or the scale to compete. If they pay a licensing fee, they consider they are essentially imposing a death penalty on themselves."
...
Lawyers who represent Western companies embroiled in intellectual property disputes in China, however, point to major loopholes in Chinese law and in the country's trademark and patent system as parts of the problem. Many Chinese patents, for example, are granted without any examination of their originality, making it easy for local companies to claim others' innovations as their own.
While foreign experts also point to progress in the country's courts and especially in the richer provinces along the country's east coast, they say that local and provincial governments, eager to bolster their economies, sometimes subsidize patent filings for local companies and provide pointers to them on how to beat foreign claims of infringement. Even the Shanghai government speaks of building a "great wall of patents" to protect local companies.
"Once upon a time, the counterfeiters in China ran away when you came after them," said Xiang Wang, a lawyer specializing in intellectual property rights at White & Case in Shanghai. "Today, they don't run away. Indeed, they stay put and they sue us. More and more Chinese companies are taking a so-called legal approach, taking advantage of serious weakness in the Chinese legal system."
One of the most problematic areas, experts say, are joint ventures between foreign and Chinese companies, which are legion. When the joint venture dissolves, or sometimes even while it remains active, the Chinese party makes use of the technology or manufacturing processes illegally. A perennially told war story in business circles here involves the foreign factory owner who makes a wrong turn while driving to his plant only to discover an exact copy of his factory on the other side of the mountain.
Although this story might be apocryphal, Mr. Wang said he saw cases all the time that are not so different in their details. "We have a client in the power business who found that one of his key employees had quit and joined a competitor, revealing confidential information to him straight away, and filing patents of these materials which were literal copies of the original technology," he said. "When our client warned he would sue over patent infringement, the Chinese company said it was also planning to sue. 'And by the way,' they asked, 'what patent are you talking about? This is our patent now.' "
The New York Times
posted by CMT, 11:23 da tarde
