This post is not Chicago-specific, but it is an issue I feel very strongly about. Last week, my DLA Piper colleague Stan Abrams in Beijing wrote a post at his China Hearsay blog arguing against the widely-held belief that patent protection in China is worthless:
Again, I’m not going to start the whole “China’s IP system is getting better and filing a patent is worth it and can be protected . . .” type of argument. Call me, and I’ll be happy to sound forth on that subject for a couple hours, but I’m not writing about it today. No, what really bothers me is this knee-jerk aggregation of the “China market” that encompasses all types of patents, all types of products, all kinds of technologies, all locations, all manufacturing processes - you get the point.
Look, your chances of protecting your patent in China varies significantly according to a number of factors. Given positive factors, the system here can work extremely well for IP owners. Given a poor set of factors, you can be screwed with no practical options. Talking about whether filing a patent in worth it or not begs the question as to what technology we are dealing with, what industry sector, a whole host of issues.
I know that it’s tough to deal with complex issues on TV or in a newspaper Q&A column. It’s much easier to show a photo of a fake Rolex and talk about the scourge of piracy, but in the end, this does not help real companies with real risk management calculations to make. Not to unjustly smack around the Wall Street Journal (heaven forbid), but there you have it.
Stan has it right. Patent protection in China is improving and foreign corporations have been winning cases brought in Chinese courts. It is certainly true, that Chinese patent protection is not consistent. But if you choose to believe the stereotypes and do not "waste" your money protecting your technology in China, you will have no recourse if that technology is stolen. Corporations doing business in China or in industries that use substantial Asian manufacturing should be protecting their technology in China.
One other thing, Stan suggests that if you file a PCT most of the work in China is translation. Having been involved in potential litigation over translated Chinese patents, I warn you to check your translation very carefully. Mandarin is very different from English. Some English words do not have simple, direct Mandarin translations and vice versa. I encourage you to check your translation, ideally with a bilingual engineer or scientist with experience in the patented technology. Translation mistakes can create major holes in your case.
