0:08 Under what circumstances should I consider doing business in China without registering my invention patent and what are some of the alternate patent options I should consider in this case?
1:31 Would we face the risk of being sued for patent infringement if the technology we used in China has not been patented by us, but has been registered by others?
2:55 If my invention is not eligible for an invention patent in China, what options do I have to protect my intellectual property?
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Under what circumstances should I consider doing business in China without registering my invention patent and what are some of the alternate patent options I should consider in this case?
If you are going to do business in China, we always recommend you get your own patents. Even if you are not going to sue anybody, we recommend this for a defensive purpose. You know, when you come across with patent disputes, with your Chinese competitors, or other competitors in China, it’s better to have something at hand. You can sue back, you can negotiate with them, and you can take counter-measures, and it’s better to have patents at hand. Secondly, you can always acquire patents from others. You can buy patents, you can get licensed… it’s an optional measure for getting your own patent. And third, you can join some organizations sharing patent pool. In addition, you can always keep a trade secret when your technology is hard to be analyzed and copied. One famous example is the formula of Coca Cola. Everybody knows that. Also, if you want no patent in China, and you do not want others to get patent for your technology, you can always publish it as soon as possible. We call it “defensive publication”, so others won’t get patent for that technology, because they are lacking of novelty.
Would we face the risk of being sued for patent infringement if the technology we used in China has not been patented by us, but has been registered by others?
Here’s one situation that foreign companies come across sometimes in China: their technology are obtained patented by others, and they might be sued patent infringement by others when they are using this technology. Luckily we have some measures to control this risk. First, as I said just now, we can use “defensive publication”. You publish your technology in advance, so that others won’t get patented by this technology. Second, you can do some research, some due diligence research, some… we call it “freedom to operate”. You can search which patent may cause me infringement, and which patent may get me sued, and you can deal with such patents; or you can “design around”—we call it “design around” – you can make some changes to your product, to your technology, to your… you know, method. Thirdly, you can use a procedure we call “invalidation”: you find some prewritten articles and some patents you can sue to the SIPO – State Intellectual Property Office. You can get others’ patent invalided. That’s three measures I consider to control this risk.
If my invention is not eligible for an invention patent in China, what options do I have to protect my intellectual property?
If your invention is not eligible as invention patent in China, you still have two choices: utility model and design. Actually, utility model is granted for those inventions with shape and structure, and the combination of thereof; and design patent as granted for appearance of industry products. These two patents have their shortages. Utility model has a duration of ten years, and design patents, according to the new patent law, they have fifteen years’ duration….