China’s war chest of rare earth patents
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Even joel Spolsky said 99.9% of the software patents out there were trivial.
e^(i * pi) + 1 = 0
still frustrates me sometimes.
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a warrant, find evidence, and use it against you: they obtained that evidence in an illegitimate fashion, so it's no longer valid.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.
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.
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.
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.
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.
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 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).
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.
>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.
Couple that total production dominance with the upswing in patent applications and this could spell trouble.