China’s war chest of rare earth patents(scmp.com)
scmp.com
China’s war chest of rare earth patents
https://www.scmp.com/business/companies/article/3019290/chinas-war-chest-rare-earth-patents-give-insight-total
56 comments
There isn’t a “must be non-trivial” requirement of patents. The broadest statement in 35 USC 101 can be boiled down to “new” which is interpreted as “novel and non-obvious.” If these “trivial” patents are “novel and non-obvious” then they are likely eligible for parenting in the US.
What's the formal distinction between 'trivial' and 'obvious'?
The fast inverse square root calculation is computationally trivial (literally one line), but highly non-obvious.
An also not something that I would want patented, nor patentable.
Its over 3 lines :), and we arent talking computationally trivial. Nothing that warrants "wtf" from Carmack is trivial.
Where would we be if everything non-obvious was patentable?
e^(i * pi) + 1 = 0
still frustrates me sometimes.
e^(i * pi) + 1 = 0
still frustrates me sometimes.
IANAL but I think if there is a problem that you need to solve (which may be part of a separately patented process) and the solution to that problem is indistinguishable from the naive approach to solve that problem then the solution is clearly ineligible for patenting - the value the patent is intended to protect is the investment required to develop the solution, and I'd slightly amend that to be "the investment required to develop the solution beyond the trivial solution"... while also remaining strong on my stance that patenting software is pretty weird to begin with.
For it to be original it must be non-obvious to a person of ordinary skill in the art. Don;t know if that makes things any clearer.
As in software, so in rare earths? Little reason to suppose that. Anyway, trivial ideas or not, the top producer is China at 120,000 MT followed by Australia at 20,000 MT and so on down the list.
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Without respecting US IP, hard to imagine there will be a lot of respect for Chinese IP from the US. Maybe it doesn't matter?
There are two problems with your statement:
1. If the United States does not honor Chinese IP, that calls into question all patents in the United States. It sends a message that American courts will ignore intellectual property when the US government tells them to. Law becomes political and arbitrary.
2. Discussion of Chinese non-respect for IP is hugely overblown. Compared to other developing countries, Chinese IP enforcement is actually fairly good, and it's been improving rapidly over the past several years. Nowadays, Western companies regularly sue over IP in Chinese courts, and they usually win. China is one of the largest venues for IP litigation in the world now.
Given the huge volume of patent royalties that American companies earn in China, it would be very foolish for the US to blow up the global patent system. The US probably has more to lose here, given that it's a more developed country with more IP.
1. If the United States does not honor Chinese IP, that calls into question all patents in the United States. It sends a message that American courts will ignore intellectual property when the US government tells them to. Law becomes political and arbitrary.
2. Discussion of Chinese non-respect for IP is hugely overblown. Compared to other developing countries, Chinese IP enforcement is actually fairly good, and it's been improving rapidly over the past several years. Nowadays, Western companies regularly sue over IP in Chinese courts, and they usually win. China is one of the largest venues for IP litigation in the world now.
Given the huge volume of patent royalties that American companies earn in China, it would be very foolish for the US to blow up the global patent system. The US probably has more to lose here, given that it's a more developed country with more IP.
Ah yes, this is partially true: in national courts in China, foreign companies often are successfully able to defend their IP, only to find that enforcement relies on separate local jurisdictions which have little interest in enforcing rules against their own.
Yeah, TBH stating that China's patents are a threat belies a complete misunderstanding of how geopolitics works.
I'm not sure about this one. One of America's virtues is that she tries to play by the rules (emphasis on "tries", though). It's why we follow the Geneva Conventions. I really, really don't like China, but I also have a bit of a visceral reaction to the "two-wrongs-make-a-right" mindset that seems to underlie this statement.
However, the question also becomes important: if China stole American IP to develop these patents, does she have any right to them? I'd analogize this to the legal precedent of "fruit of the poisonous tree". This precedent states that cops can't raid your home without a warrant, find evidence, and use it against you: they obtained that evidence in an illegitimate fashion, so it's no longer valid. I could rationalize that if China stole our tech to develop hers, she has no right to that tech in the first place.
However, the question also becomes important: if China stole American IP to develop these patents, does she have any right to them? I'd analogize this to the legal precedent of "fruit of the poisonous tree". This precedent states that cops can't raid your home without a warrant, find evidence, and use it against you: they obtained that evidence in an illegitimate fashion, so it's no longer valid. I could rationalize that if China stole our tech to develop hers, she has no right to that tech in the first place.
It's nothing to do with US IP, China does not respect any IP in China. An equal reaction would be for the US to not respect any IP in the US.
Why should anyone respect China's patents when they flout patent law that puts them at a disadvantage?
The US did the same thing until it didn't. Should everyone ignore US patents because we flouted everyone else's for a century?
What century was this? The US didn't sign a comprehensive patent treaty until near the end of the 19th century, so we were under no moral or legal obligation to honor another countries internal patents before then.
The US also kept people in slavery for close to a century--I don't think that's a good excuse for a modern developing nation to practice slavery.
The US also kept people in slavery for close to a century--I don't think that's a good excuse for a modern developing nation to practice slavery.
No one has any obligation to honor another country's "internal patents". Patents are only enforceable in the countries that grant them. US patents are granted by the US government. To ignore them in the US is to violate US laws, not Chinese laws.
Patents granted by the Chinese government have no legal force in the US in the first place.
That's was probably the wrong way to word it because yes foreign patents aren't enforced by the US.
The Paris treaty I was referring to regulates why a patent can be denied. For instance its says that the US has to treat patent applications from citizens of member countries the same as US petitioners.
For example, the US can't show favoritism to domestic companies (with respect to other countries who've signed the treaty) when granting patents--they can't just deny patent protections to Chinese petitioners because they are Chinese. (I'm guessing there are nation security exceptions, but I'm not an expert, I've just researched this from a business perspective.)
And the US has to honor the priority date of foreign signatories patents (assuming certain conditions are met).
The Paris treaty I was referring to regulates why a patent can be denied. For instance its says that the US has to treat patent applications from citizens of member countries the same as US petitioners.
For example, the US can't show favoritism to domestic companies (with respect to other countries who've signed the treaty) when granting patents--they can't just deny patent protections to Chinese petitioners because they are Chinese. (I'm guessing there are nation security exceptions, but I'm not an expert, I've just researched this from a business perspective.)
And the US has to honor the priority date of foreign signatories patents (assuming certain conditions are met).
I don't know the specifics, but presumably this is what a patent treaty is designed to cope with?
Whose patents did US flout?
https://www.ipwatchdog.com/2017/07/05/americas-industrial-re...
https://www.smithsonianmag.com/smart-news/how-industrial-esp...
https://foreignpolicy.com/2012/12/06/we-were-pirates-too/ (this one is specifically in context of China)
This was before patents were well codified - instead it was trade secrets and guilds. It was still intellectual property theft.
https://www.smithsonianmag.com/smart-news/how-industrial-esp...
https://foreignpolicy.com/2012/12/06/we-were-pirates-too/ (this one is specifically in context of China)
This was before patents were well codified - instead it was trade secrets and guilds. It was still intellectual property theft.
Slater was a British citizen who was prohibited by law from leaving Britain. He left under an assumed identity and set up shop in the US. This is not an example of the US engaging in industrial espionage or IP theft itself. We don't even know if Slater himself committed what we would call IP theft. From your first article:
>Looking back, we can’t really conclude whether Samuel Slater’s actions would have qualified as trade secret misappropriation under modern laws. We don’t know, for example, how much of his work that first year resulted from his skills and general knowledge about the physics of spinning cotton and about pre-existing mechanical techniques. All of that was his to use freely. And we don’t know to what extent the success of his mills was due to improvements that he came up with on his own.
There was a deputy treasury secretary who posted bounties looking for British cotton mill operators, but that seemingly never came of anything. That is better evidence of direct wrongdoing by the US.
However, the US hadn't signed any treaties honoring British IP law yet and most European powers were doing the exact same thing at the time.
>While the first U.S. patent act, in 1790, specified that "any person or persons" could file a patent, it was changed in 1793 to make clear that only U.S. citizens could claim U.S. patent protection.
>China’s modern trade and patent regimes are similarly tilted against outsiders.
The US in 1793 hadn't signed a treaty preventing them from limiting patent protection to US citizens.
China has signed treaties promising to treat patent applications by petitioners from signatory states the same as domestic petitioners, and as your article points out they do not.
>Looking back, we can’t really conclude whether Samuel Slater’s actions would have qualified as trade secret misappropriation under modern laws. We don’t know, for example, how much of his work that first year resulted from his skills and general knowledge about the physics of spinning cotton and about pre-existing mechanical techniques. All of that was his to use freely. And we don’t know to what extent the success of his mills was due to improvements that he came up with on his own.
There was a deputy treasury secretary who posted bounties looking for British cotton mill operators, but that seemingly never came of anything. That is better evidence of direct wrongdoing by the US.
However, the US hadn't signed any treaties honoring British IP law yet and most European powers were doing the exact same thing at the time.
>While the first U.S. patent act, in 1790, specified that "any person or persons" could file a patent, it was changed in 1793 to make clear that only U.S. citizens could claim U.S. patent protection.
>China’s modern trade and patent regimes are similarly tilted against outsiders.
The US in 1793 hadn't signed a treaty preventing them from limiting patent protection to US citizens.
China has signed treaties promising to treat patent applications by petitioners from signatory states the same as domestic petitioners, and as your article points out they do not.
Because we aspire to the rule of law, even if they don't.
"Because we now need the rule of this particular law, even if they don't. Of course, when we didn't need it, we broke it like crazy ourselves, like we were tariff crazy back in the day (but now we are against them), and like all our other international transgressions (supporting dictators, toppling governments, secret sites, etc), or lack of "aspiring" for the rule of law in other matters, including not signing child labor treaties or environmental ones everybody else in the west signed" -- that would be more like it.
Changing the law is allowed within the rule of law, which is what I read gp as suggesting, so I'm not sure this is an answer.
While I completely agree that the US should aspire to hold the law in high regard, there is plenty of cases where it's disregarded against bad actors.
Consider the sanctions against countries (Iran comes to mind at the moment) where that country is not allowed to pursue perfectly legal actions because of 3rd party pressure.
Sanctions against China won't work though because their international political clout.
But since much of the rare earth patents are probably needed for making defense systems, I think it can easily be set aside as a "national security", "self defense", etc... I am sure a savvy lawyer could come up with the argument.
Consider the sanctions against countries (Iran comes to mind at the moment) where that country is not allowed to pursue perfectly legal actions because of 3rd party pressure.
Sanctions against China won't work though because their international political clout.
But since much of the rare earth patents are probably needed for making defense systems, I think it can easily be set aside as a "national security", "self defense", etc... I am sure a savvy lawyer could come up with the argument.
> But since much of the rare earth patents are probably needed for making defense systems, I think it can easily be set aside as a "national security", "self defense", etc... I am sure a savvy lawyer could come up with the argument.
We can desire to violate the treaties to our hearts' content, but if we don't actually have the elements the patents are referencing we won't be able to violate any of the patents.
We can desire to violate the treaties to our hearts' content, but if we don't actually have the elements the patents are referencing we won't be able to violate any of the patents.
Rare earth metals are _not_ uncommon, we have tons of them in the US, just not the processing capacity. Which is already starting to change.
Indeed, but even for example with a wartime suspension of their patents, we would be cut off from supplies immediately and it could potentially take years for our domestic pipeline to start delivering.
Without the wartime excuse I don't foresee it getting any better for the speed at which we can start mining (pretty sure it would take multiple acts of congress to allow for the environmental regs to be ignored), and if we start violating China's rare earth patents willy-nilly I don't picture them helping us with that by continuing to sell the raw materials to us.
Without the wartime excuse I don't foresee it getting any better for the speed at which we can start mining (pretty sure it would take multiple acts of congress to allow for the environmental regs to be ignored), and if we start violating China's rare earth patents willy-nilly I don't picture them helping us with that by continuing to sell the raw materials to us.
Sure, but until there's war, patents are just a business issue, not a catastrophic one. So there really is no issues here accept who makes more money.
This is precisely what negotiation in good faith is meant to resolve.
Well for one not doing so is a fast way to essentially instalose the argument by undermine the legitimacy of their complaints - it makes the whole complaint look like a pretext.
To get a sense of the severity of the problem check out this graph: https://en.wikipedia.org/wiki/Rare-earth_mineral#/media/File...
Couple that total production dominance with the upswing in patent applications and this could spell trouble.
Couple that total production dominance with the upswing in patent applications and this could spell trouble.
Rare earths are a key source of foreign currency for China, currency is presently needs to import all manner of products globally. But China is hard at work trying to make the RMB a global currency - most recently through a gold/oil/RMB market. So, understand that once the RMB ascends to a status similar to the EUR or USD you will rare earth prices skyrocket and patents enforced.
What are the chances the US government can put pressure on the patent office to invalidate said patents?
Or, maybe, you know, let's keep the world trading peacefully, letting every corner of the world do and sell what they're best at?
analognoise(3)
Even joel Spolsky said 99.9% of the software patents out there were trivial.