Invalidating patents: an essential strategy
On June 30, 2011, a high-speed rail link between Beijing and Shanghai began commercial passenger services, having been completed in just three years. This news seems a great achievement by China.
However, in addition to the news report about Chinese train technology, another report has also caused irritation in Japan. The Chinese English newspaper China Daily reported on June 23 that CSR Corporation Limited, a state-owned Chinese railway-car manufacturer that makes the high-speed railway cars, is seeking patents in the US, Europe and other countries for its CRH380A train.
But because Bullet Train technology is known throughout the world as Japanese technology, Japan’s news media reported on the Chinese manufacturer’s patent-seeking activities immediately after the Chinese news report was received in Japan.
CSR is said to have filed patents in several countries, asserting that the chassis and long nose of the train have been developed based on unique Chinese technology designed to increase the train’s maximum speed during commercial operation. This action likely reflects a plan by CSR to export its products in the future.
It is natural that a country’s level of technology will rise in accordance with the country’s economic development. Innovations can be achieved by first introducing foreign advanced technologies and then developing new technologies based on those imported technologies, as Japan did in the past.
However, Japanese manufacturers, including Kawasaki Heavy Industries Ltd, insist that the Chinese train is based on Japanese technologies and is merely a modified model of the Japanese Shinkansen Hayate. Japanese manufacturers are quite concerned about the Chinese manufacturer’s patent applications.
"If an invention that lacks novelty, inventive step or industrial applicability is granted a patent, there is no choice but to file a request for a trial to invalidate that invention's patent."
Japanese media commentators have made comments such as: “It is not ethical for the Chinese company to file patents in the US and elsewhere while ignoring the Japanese manufacturers”, though most of those comments do not include any specific reasons for their criticism or any suggestions as to practical steps to be taken in response to the Chinese company’s action.
In view of the nature of the patent system, if the arguments made by Japanese media commentators and Japanese manufacturers are valid, and if an invention that lacks novelty, inventive step or industrial applicability is granted a patent, there is no choice but to file a request for a trial to invalidate that invention’s patent.
In Japan, any person may file a request to invalidate a patent on the basis of Patent Law provisions covering lack of novelty and inventive step, or that the patent application was made by a person who is not legally qualified, even after the term of the subject patent has expired.
This patent-invalidation system means that any and every defective patent can be invalidated if a person can present sound reasons for invalidating the patent, though it is necessary to consider that any specific reason used in an attempt to invalidate a patent cannot later be used to oppose implementation of the patent.
However, emotional arguments are not helpful for a company in designing a global strategy based on a patent system. Technologies that a company intends to export must be protected by strengthening the company’s global rights relating to intellectual property, for which a company must be ready to fight.
Global strategies relating to intellectual property rights are still big problems that Japanese companies in general have not yet learned to solve. Japanese companies tend to be satisfied with just obtaining patents, neglecting to exercise the patent rights obtained or to protect those rights in foreign countries.
Since the bankruptcy of Lehman Brothers, some Japanese companies have tended to make light of protecting intellectual property, due to the companies’ weakness in building intellectual property strategies and/or a shortage in funds. This trend seems to have been strengthened further after the disastrous earthquake and tsunami of March 11.
I believe it is high time for Japanese companies to review the patent system so as to fully utilise it and to subject defective patents to patentinvalidation trials.
Ryo Maruyama is a patent attorney and vice president of Kyosei International Patent Office. He can be contacted at: kyosei@tkc.att.ne.jp
