Germany, Chinese copies and misdirected "strategy"

“German mechanical engineering companies
increasingly decide not to file for patent protection as they believe
that the patents may be used by Chinese competitors, who study the
patents to copy inventions…
The VDMA advises its members only to file for patent protection if the invention requires considerable know how.”

(Please see IPKat for the full story.)

It is only January, and I can see this is already going to be up there as one of the most ridiculous IP statements of the year. This is wrong on so many levels, here’s just a few:

  1. If they don’t copy the patent, they will copy the product itself – and guess how much chance you have to stop them without a patent.
  2. If your market is only in Germany, or does not include China, then fine, don’t file a patent there, but that doesn’t mean you should give away the rest of the world.
  3. The fact that people are copying you (in whatever country) is also an opportunity. If they can make it cheaper – great, go get a court order that they stop or take a licence. Yes, this is easily possible in China today.
  4. Invest in understanding and making the most of countries such as China – don’t bury your head in the sand.
  5. You can’t file a patent for an invention and hope that it won’t be reverse engineered due to the know how you didn’t put in the specification. That happens to be a ground of invalidity.
  6. This is such an out of date view of China, that I’m incredulous.

8 Comments on “Germany, Chinese copies and misdirected "strategy"

  1. I disagree with your analysis, for the following reasons (for each point listed above)
    1. The patent might be for a process, not for a product, and so it could be hard to “discover” the invention if it is not explicitly disclosed in a patent
    2. Even if you don’t file a patent in China, a Chinese company can read a DE patent and copy the invention
    3. This is a typical statement of an attorney, but companies aren’t willing to go before a court, especially in China.
    4. That’s right! But patent’s aren’t always the best solution!
    5. I’m sure that 99.9% of the patents lack of a good deal of know how in the specification
    7. No commet here.

  2. With due respect to all involved, I find myself resting in the gulf between Duncan and VDMA/Davide.  Fundamentally I think that both positions arise from overly simplistic assertions, the inevitable consequence of generalising in the complex world of IP management.
    It is my view (and experience) that there is never a stock answer to the matter of patenting; BUT there is a stock DECISION PROCESS.  In my own (sadly excessively intuitive) procedure one of the first questions to be asked is “Is this invention able to be reverse engineered using the physical product, public domain information and the skill of a creative artisan?”  A”YES” will shift the balance in favour of seeking a patent.  A “NO” will move the balance the other way.  Davides point 1 I sense is intended to reflect that assessment, but BEWARE; just because it is a process invention does not mean it is not at risk of reverse engineering. 
    But with an answer to this important question, there are multiple sequential questions* that need to be addressed to inform the decision whether to patent.  For me the only point at which China specifically surfaces as an issue is at the point of territorial decisions.  It may influence whether to adopt a “territory of manufacture” strategy or a “territory of use” strategy for protection. 
    It is not until the entire basket of questions is addressed that any level of clarity is possible on that vexing question”Should I seek to patent”.  In this area, the process rules!
    *  A top-of-mind and non-exhaustive list follows:

    Is this a patentable invention?
    Is this a critical core technology for our future or an interesting alleyway? (Deciding for the latter may well encourage publication not patenting to preserve non-exclusive FTO)
    Do we wish to trade the technology (license, sell), or exclusively use in house?
    Will a patent strengthen our defensive competitive position through providing cross-license opportunities should a competitor close avenues through their own patenting?
    Many more … but I must get back to me REAL job!

  3. Davide – thanks for your great comments, and welcome.Allan – thanks, great comments as always, and welcome back.Allan’s point about focusing on the process is a good one – and it is clearly part of Davide’s thinking too.A lot of people respond with a blank stare when you start them on another ‘process’.  Sometimes it works really well to boil it down to just 3 or so points which cover almost all of the ground.To Allan and Davide, and all of the other readers watching this conversation – do you think the patenting decision can be boiled down to just three steps?  If so – what would yours be?

  4. Anon – thanks.I’m a bit confused by your comment, and we’d all really appreciate it if you would explain your thinking in a bit more detail.I followed the links you gave (and thank you) – to a comment on Compulsory Licences and another on incentives for developing pharmaceuticals.  But I’m still a little in the dark.

  5. If you look at  
    and other articles, you will see that EU countries are only half-hearted regarding IP enforcement.  They will thus never really expend the political and economic capital to force the Chinese, Indians and other so-called “developing” economies to enforce patent rights against their domestic grey market.  After trying for years in those markets, the Germans understand this.

  6. Duncan,I agree with you 99%. The one percent is that once in while situation where practical protection of IP (e.g. trade secret) makes more sense than attempting to go for some sort of public registration based protection. Not so often, but possible.Otherwise, you’re right. I still remember when clients were deathly afraid of filing with SDA (old name of SFDA) or the Software Protection Centre because the application info and related data would go in the front door and out the back, often to a friend with a nice reverse engineering shop at a State-owned chemical plant.This is indeed outdated thinking, although with what people are still getting from the media these days, I am not surprised.

  7. Stan – thanks for your comments, and insight into China.Anon – thanks for elaborating – very much appreciated.  I may have interpreted this incorrectly – but you seem to be suggesting that the authorities in countries like China and India are in some ways encouraging domestic grey markets.  Is that right – or are you saying that they are at least ‘willfully blind’ to the efforts of the grey marketeers? What does everyone else think?

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