Intellectual Property Protection in China

With the explosion of replica and counterfeit products manufactured in China, individual inventors and “brand driven” companies are finding it necessary to protect their intellectual property in China. If you are concerned about how China’s growing economic prowess will affect your business, you are certainly not alone. The governments of Europe and the United States are mobilizing to put "equitable economic globalization at the core of their relations with China just as in 1949 they made NATO the bedrock of global security", European Union trade chief Peter Mandelson was recently quoted as saying. The United States, European Union and other key trading partners last month announced their intention to negotiate an Anti-Counterfeiting Trade Agreement (ACTA) to encourage other countries to meet higher intellectual property rights enforcement standards. Lawmakers in the United States concerned that global counterfeiting and piracy are hurting American business introduced two bills on Wednesday aimed at curbing the practices, and said they want more international cooperation to do so. While the U.S. has aggressively challenged China at the World Trade Organization, launching four new commercial complaints since 2006, Europe has been more reticent. It has initiated only one dispute, joining Washington in a case over Chinese rules on imports of foreign-made auto parts. GreatWallIP.com is an early effort to help Western companies and individuals seeking qualified help in China, to file their patent applications, monitor the activity of competitors and copiers, and help organize actions against counterfeiters. The site is about "providing information and resources of interest to patent-minded European or US-based companies who are, who hope to, or who feel compelled to protect their intellectual properties in China.". A cornerstone of all these efforts is to ensure meaningful intellectual property protection is available to all who seek it, regardless of national origin. Of course, you must "seek it" and secure your Chinese intellectual property rights in order to benefit from the international effort to protect these rights. Therefore, to even have a chance at winning the game, you must ante up by filing applications to protect your rights in China or cede your rights to the public domain, where those who can make the product at the lowest costs, the Chinese, have the clear upperhand. Despite the overriding tendency to file patent applications in China, there are a few reasons NOT to file in China. The primary reason is when the product you wish to protect can easily be copied in China and where fixed costs of equipment represent a low barrier for entry. Why? Because low fixed costs often means mobile, light production equipment which are relatively easy for the Chinese copier simply to move should he change locales and begin copying elsewhere under a different name, in order to avoid accountability for his actions. If this is the case, a Chinese patent may simply inspire a copy of your product, with little you can do about it. On the other hand, if fixed costs of equipment represent high barriers to entry or manufacturing processes are difficult to replicate, then seeking a Chinese patent may be advisable. Another reason for not filing in China is where your invention is say, a manufacturing process that you can effectively keep secret during its exploitation. Of course, once the process is no longer secret, it enters the public domain and anyone may freely copy it, so there is a risk. Therefore, where the risk that the invention will become known is high, you should consider filing a patent application to protect it in China.

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Moetteli & Associés SàRL is a firm of European and US Patent attorneys. The firm is licensed to prepare and file patent and trademark applications directly in the US and Europe and can manage any filing in China patent. Find more information intellectual property in China here.