Chinese IP Judge Discusses Implications of U.S. Patent Reform Bill and Two Congressmen Heed Warning

    By Donald Zuhn --

Last week, we received two messages from a reader (aka: "Patent Warrior") regarding an article published in China Intellectual Property News on November 7, 2007, and the response to this article by U.S. Representatives Michael Michaud (D-ME) and Donald Manzullo (R-IL).  The article, which was only recently translated (a certified copy of the translation, as well as of the original article, can be obtained here), was written by Yongshun Cheng and Li Lin.

Mr. Cheng (at right), who is a former Senior Judge and Deputy Presiding Judge of the Intellectual Property Division of Beijing High People's Court, and Mr. Lin spend the majority of their article outlining a number of the reforms contained in the House of Representatives' bill.  However, the authors conclude the piece by discussing the bill's impact, arguing that "the bill will weaken the right of patentees greatly, increase their burden, and reduce the remedies for infringement."  According to Mr. Cheng and Mr. Lin, the passage of the House bill, in the face of strong opposition, resulted from the lobbying efforts of "some of America's largest and most influential companies," which desire "a weaker patent system, or one that benefits companies that do not rely on patent protection to obtain market dominance."

In concurring with an opinion that has been previously expressed in this space (see "Patent 'Reform' Bill Passes House of Representatives"), the authors contend that reforming the U.S. patent system to accommodate IT inventions would yield an "unfair outcome" when that system is applied to biotechnological inventions, since biotech companies depend more heavily on patents to protect their inventions and IT companies frequently combine a larger number of patented features in a single product.  Mr. Cheng and Mr. Lin assert that "patent reform should not only benefit a small group, but promote the patent protection as a whole."

Ultimately, Mr. Cheng and Mr. Lin conclude that the House bill "is friendlier to the infringers than to the patentees in general as it will make [U.S.] patent[s] less reliable, easier to be challenged and cheaper to be infringed."  In particular, the authors see the House bill as creating an environment in which Chinese companies, and companies from other developing countries, will find it easier to enter the U.S. market as the fear of facing patent infringement actions or large damages awards lessens.  Interestingly, Mr. Cheng and Mr. Lin conclude their article by noting that the House bill "conflicts with the attitude of the US Government of pressuring the Chinese Government to strengthen the protection on IP rights."

According to the Beijing Intellectual Property Institute (BIPI) website, Mr. Cheng is the current director of the Institute, and in 2003, was nominated by Managing Intellectual Property as one of the fifty most influential IP figures worldwide and one of the top three IP figures in China.

In a second e-mail, Patent Warrior alerted us to a letter that U.S. Representatives Michael Michaud (at right) and Donald Manzullo (at left) sent on Friday to other Members of Congress.  Representatives Michaud and Manzullo noted in their letter that during debate on the House bill, several Representatives argued that "the bill would weaken U.S. patent protections and  thereby encourage developing nations to do likewise."  The Representatives now point to the China Intellectual Property News article as providing support for this position.  Representatives Michaud and Manzullo conclude their letter by noting that the Senate bill could be voted on in early 2008, and urging other Members of the House "to carefully consider [the bill's] implications for international patent rights and impact on U.S. competitiveness" if a conference report on patent reform returns to the House for consideration.

For additional information on this topic, please see:

• Congressman Michaud's September 6, 2007 press release on patent reform
• "IPO President Seeks Deletion of Patent Reform Provision," December 12, 2007
• "Senate May Act on Patent 'Reform' Bill in the New Year," December 2, 2007
• "The Wall Street Journal Gets It Half Right," November 5, 2007
• "BIO CEO Provides Briefing on Follow-On Biologics and Patent Reform," September 18, 2007
• "Patent 'Reform' Bill Passes House of Representatives," September 9, 2007
• "San Francisco Chronicle Opines on Patent Reform," August 6, 2007
• "Patent Reform Bill to Be Delayed?" June 12, 2007
• "Senate Judiciary Committee Holds Hearing on Patent Reform," June 10, 2007

Comments

[EG]

As I've said before, this Patent Reform Legislation will weaken America's competitive advantage versus the rest of the world. It's so obvious, even those outside the U.S., as reflected by Judge Cheng's article, recognize that Patent Reform Legislation doesn't competitively benefit the US. In fact, and Judge Cheng said, if this Patent Reform Legislation goes through, be prepared for those outside the U.S., especially China, to flood this country cheap knock-offs, including drugs, etc., at even greater rate, as there will be very little to stop them. Congress, and especially the Senate, you need to listen to what even those outside the U.S. are saying about this Patent Reform Legislation.