It looks like the Chinese are ready to fight back. According to a piece in yesterday's Morning Brief in the Wall Street Journal (citing a report in the Legal Times), the Chinese are hiring more American lawyers to fight counterfeiting charges. What is to come is IPR litigation. As the Journal piece states:
although Chinese companies have yet to initiate patent claims against their competitors in this country, lawyers tell the magazine that day is not far off.
My own sources tell me that they have see "a sizable increase in interest by Chinese firms to actively assess the enforceability or weakness of patent portfolios - not looking at design around strategies but rather looking at the feasibility of successful re-examination or invalidation."
This may be a spur to reform of the US patent system -- imagine the political ramifications if the RIM or eBay infringement cases had brought by a Chinese competitor. My worry is that we will not take this as a wake up call. Nor will it be a tool for accountability, focusing on purging the system of invalid patents. Rather I fear that the amount of litigation will dramatically increase as others learn to use the system (with the presumption of injunctive relief) as a strategic device.
In the 1980's we attacked the problem of Japanese patent thicket by (surprise, surprise) creating thickets of our own. I fear we are headed down the same path where we have created an absolute property right to ideas and a punitive legal system to back that right which can and is used as a competitive tool.
Having the Chinese take an interest in a valid transparent and enforceable IP system is in everyone's interest. Having a US patent system that can be gamed for strategic competitive advantage and stifle innovation is in no one's interest.
We need to reform the patent system -- now!
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