Patenting From China

The new China-Patenting article from Jay Kesan, Alan Marco, and Richard Miller offers some interesting insight on developments in how Chinese innovators are using the patent system. The “More than Bric-a-Brac” article particularly focuses on how the Chinese approach has changed over time.  The article concludes that China’s approach is not exceptional but rather is following the same pattern exhibited by other nations such as South Korea and Japan in decades past.


Read the Article: Kesan, Jay P. and Marco, Alan C. and Miller, Richard, More than Bric-À-Brac: Testing Chinese Exceptionalism in Patenting Behavior Using Comparative Empirical Analysis (March 8, 2016). Michigan Telecommunications and Technology Law Review, Vol. 22, No. 53, 2015; Available at SSRN:


MORE THAN BRIC-A-BRAC: TESTING ` CHINESE EXCEPTIONALISM IN PATENTING BEHAVIOR USING COMPARATIVE EMPIRICAL ANALYSIS Jay P. Kesan*, Alan Marco**, and Richard Miller*** Cite as: Jay P. Kesan, Alan Marco & Richard Miller, More than BRIC-`a-Brac: Testing Chinese Exceptionalism in Patenting Behavior Using Comparative Empirical Analysis, 22 MICH. TELECOMM. & TECH. L. REV. 53 (2015). This manuscript may be accessed online at

38 thoughts on “Patenting From China

  1. 4

    While listening to a streaming “DJ show”, I came across this message:

    In America Mixcloud has blanket music licences with SoundExchange, ASCAP, BMI & SESAC. These licences stipulate certain rules around how you can listen to a service like Mixcloud: – You cannot scrub or rewind backwards within a show, only forward

    Any “insiders” want to comment on the origin for this “stipulation”? Note that any user can stop the show, rewind to the beginning of the show, start over, and then “scrub forward” to any intermediate segment prior to (or after) the point where the show was stopped. So what’s the purpose of this “stipulation”, other than to irritate users?

    I wondered at first if it was possible that some entity had a separate patent on “rewinding” a digital stream (totally different from forwarding!). But that would be absurd. Then again, absurdity like that is not only possible but expected in our patent system.

  2. 3

    link to

    The most realistic industry projection about the arrival of autonomous driving comes from the company that’s done the most to make it possible. Google, while never explicitly saying so, has long intimated that self-driving cars would be available by the end of the decade.

    In February, though, a Google car caused its first accident; a bus collision with no injuries. A few weeks later, Google made a significant, if little-noted, schedule adjustment. Chris Urmson, the project director, said in a presentation that the fully featured, truly go-anywhere self-driving car that Google has promised might not be available for 30 years, though other much less capable models might arrive sooner.

    Historians of technology know that “in 30 years” often ends up being “never.” Even if that’s not the case here, if you’re expecting a self-driving car, you should also expect a wait.

    Clearly we need a million more “do it in robot car” patents! And quickly!


    1. 3.1

      MM has says on the one hand that everything to do with information processing is just easy and on the other hand way too hard.

      MM you are so FOS.

    2. 3.2

      Also you’ll not that taken into context of enablement, we see why MM’s nonsense is just that–nonsense. You can’t write a claim to just driving the car if it is not enabled.

      Oh well…MM is being paid to blabber on so it will never change or stop as long as K Street is paying his bills.

      1. 3.2.1

        Night, realistically, a claim to doing what humans ordinarily do in driving a car, but saying do it automatically, cannot be patented as such. If anything, the invention has to be in the means or the methods or the programming that actually enabled the claimed result.

        The problem we are having here, quite a bit I might add, is that you and anon and maybe others here do not seem to have any clue about how to claim an invention as opposed to how the claim results. The fact that the patent office allows these claims is not an endorsement of the claim form, but an indictment of the patent office.

        People who are accused of infringement who do no more than achieve the same results but by substantially different means or methods or programs have a right to complain. That they do should be expected. These kinds of claims have brought companies like Google, Intel, Microsoft and their allies into the debate about the patent system. You ought to listen a little bit to what they have to say.


          Ned, use patent law. Enablement, 112, 102, and 103, and life is fine.

          “The problem we are having here, quite a bit I might add, is that you and anon and maybe others here do not seem to have any clue about how to claim an invention as opposed to how the claim results. ”

          The problem is the misrepresentation of claiming by you and MM (and to some extent the lowly Lemley.) I have no problem claiming inventions and do so every day.


          Ned telling others that they do not understand claim form…

          Too funny (but not in a good way for Ned)


          Ned you truly are a vile human being. You are using your intelligence and education to intentionally muddle patent law. Try to use real science and real patent law.

          I refuse to engage in a discussion about witches with you. If you want to discuss 112, 101, 102, and 103 with me, then fine.


          >>The problem we are having here, quite a bit I might add, is that you and anon and maybe others here do not seem to have any clue about how to claim an invention as opposed to how the claim results.

          You’re being excessively charitable. I’m sure NW could draft a solid claim to a motor or software technique with meaningful technical limitations.

          He’s simply not interested in doing so due to self interest.


            That’s expressly NOT self interest Bob.

            Maximum protection under the law is our ethical duty to the client.

            B0z0 comments like yours seeking to impugn that ethical duty only highlight your anti-patent bias.


              Dingleberry* and co are desperately worried about claim overreach but they forge on out of a duty to their clients! LOL. That doesn’t pass the sniff test!

              Step 1. Believe that one of ordinary skill in the art would conclude that the description of a result shows possession over every way of achieving that result.
              Step 2. ?????
              Step 3. Profit!!!

              * Support MD’s nickname for our favorite poster!


                “Bob” – your “version” of the “sniff test” is laughable.

                As to “support” of someone evidently just as clueless as you in regards to US jurisprudence of patent law, there ALREADY is a name for that: “the Echoes.”

                But hey, your bias is still showing, so you might want to do something about that.

                1. Bob, how about steps 1-3. Bob, I have been a patent attorney for a long time and worked with many inventors from start-ups in Silicon Valley to just about every high-tech large corporation. I’ve done litigation too and licensing. And written 100’s and 100’s of patent applications.

                  I don’t see an abusive system, but one where inventors work hard, companies invest a lot of money because of patents, and small inventors work hard to try and prevent becoming road kill.

                  That is reality and what is supported by the statistics and the reputable studies. Nice that MM gets on here paid for by K Street and makes up a reality. We have seen this before in finance and anti-trust law. The big international corporations get what they want now and we know that Google does not want patents to be strong for small companies.

                  Plus, look at the reforms. Many “trolls” are doing better than ever, but the small investor is dying. Reality.

                2. I do not agree that Steps 1-3 are law. In case you are culturally and linguistically challenged, that formatting is associated with absurdity and the tone is sarcastic.

                  Since you disagree with Steps 1-3, do you acknowledge that the description of a result does not show possession over the means for the result?

                  Can you honestly say that patent law practice is more lucrative than in a world with strictly enforced possession requirements?

      2. 3.2.2

        You can’t write a claim to just driving the car if it is not enabled.


        A claim to “just driving with a robot car” is not the problem. Most people aren’t dxmb enough to try to assert that kind of junk or waste the PTO’s time examining it. A zillion claims to “robot car gets this data, applies logic, and does this” is another story.

        But go ahead and tell everyone why it’s soooo important to grant claims on that kind of junk. I’m sure you’ve got some awesome reasons! Let’s hear them.


          MM, what do you do on these blogs? Read data, process data with some logic, and output a post.


            what do you do on these blogs? Read data, process data with some logic, and output a post.

            And the point you are trying to make is …..?


              Try using patent law MM. Statements like, “gee if feels too broad for my comfort,” have no place in patent law.

              try is it enabled? is it anticipated or rendered obvious by art?

              You are not a patent practitioner, but a judicial activist that plays to the ignorance of Obama and his judges.


                Are you useful?

                Everything, including every bit of information out there, is useful to somebody in some context.

                So what was your point?

    3. 3.3

      Dennis, why do you allow this vermin to post on the this blog? It is impossible to have an intelligent conversation about patent law with MM’s incessant stream of propaganda.

      1. 3.3.1

        Night, with all due respect, if there are vermin here, it is the people who simply do not appreciate that the patent system is being abused, and who attack the people who stand up for patent system that rewards invention as opposed to rewarding patent attorneys who complain loudly about the Supreme Court and how it is acting unconstitutionally when that court confines the patent laws to rewarding inventors who make inventions within the useful arts.


          Ned, the vermin are the ones that are not intellectual honest and are not representing patent law fairly. The judicial activist — and Benson — are the problem.

          And try to account for the fact that the greatest software system in the world by a factor of 10 has grown-up with this patent system and the OMB said there is no troll problem, etc.


          Ned standing “up” for the patent system…

          With friends like that, who needs enemies?


          So you and MM stand up for the patent system? In what way? I’ve never seen one positive comment made by you or MM in terms of the patent system. You both think the only thing that’s patentable is a chemical that’s newly discovered. Otherwise, it’s not.


            You both think the only thing that’s patentable is a chemical that’s newly discovered.

            Oh lookie! The path0 l0gical li@rs are back.


            PatentBob, hardly. MM and I both thought the claims in Myriad were eligible. Outside of chemistry, MM is quite willing to agree that new machines, circuits and the like are eligible provided they are described, enabled, and claimed structurally.

            As to me, my main beef on 101 is State Street Bank and its progeny. I have never believed that simply reciting a computer was “enough.” Ditto a CRM. To allow such would be to allow claims on any use of a computer, which broadly, is just about anything. Such logic would blow a hole right through 101 as if it were not there, and it lead to the patenting of business methods provided they used a computer.



              It is no secret that you are an echo of Malcolm’s (just “enjoy his swagger” and all).

              In the immediate post though, consider what is wrong with your statements:

              and the like are eligible provided they are described, enabled, and claimed structurally.

              First, this attempts to make one optional claim format to NOT be an option, but instead to be a de facto legal requirement. That is simple legal error.

              Second, it is not even true. As I have posted, software is patentably equivalent to any of the other manufactures as computer components (hardware and firmware). I have often stated that “CRM” or “software claims” could instead of using terms sounding in action could instead be entirely written out in “objective structrural terms.” Such claims of course would run for tens or hundreds of pages and would be largely unrecognizable to the human eye – be that eye the eye of the examiner, a judge, a jury, or anyone else.

              Your last paragraph betrays your animus, as business methods – with or without computer implementation are – as a category ALREADY patent eligible – and EVERY bit as eligible as any other category of methods. Take for example, medical methods – there have been Supreme Court cases throwing medical method claims out. With your (attempted) “logic,” your fallacy, ALL medical methods would be gone.

              You again attack the person of Rich and ignore the breach of the Court with your “nominalism” argument. That argument falls apart though at closer inspection. That argument leads to the path of the unlimited “Gist/Abstract” sword and the outright removal of the statutory category aspect of 101.

              Make no mistake – your type of “pro” patent IS anti-patent.

  3. 2

    It would be nice if you cited an article too that went into China’s strategic goal of innovating. China envies Korean innovation and is intentionally copying their patent practices to bred innovation in China.

    The anti-patent judicial activists in this country do not like this fact as it is contrary to their K Street propaganda. You, Dennis, should cover this fact.

  4. 1

    Does it occur to anybody that China is disciplined enough assiduously to identify “best practice” in other countries and economies and then, learning from the mistakes of others, cherry pick the best for itself.

    I think it is spurred on by national pride. The Middle Kingdom used to be the centre of the world, the Big Brother to which all other countries were Little Brother and had to pay “tribute”. I suspect this worldview is what children in China imbibe from birth, and they see it as their duty to their ancestors to get back to that happy state. They play a Long Game too. As they said when asked about the consequences of the French Revolution – “Too early to say”. I think they have noticed how important patents are for the big American multi-nationals, in pulling in “tribute” from all round the world. A “strong” patent system is fine, when you are the strongest player on the field. If and when they get to be the strongest player they will see to it, that they have the strongest patent system.

    Is there anything in their patent policy of today which is inconsistent with all that?

    1. 1.1

      Your view of “national pride” and “American multi-nationals” evidences a profound misunderstanding of what Big Corp and a multi-national actually is.

      Perhaps the better word is “Trans-national.” For Big Corp, there is NO single country allegiance, and it is all about the Corp (cost factors, taxes, WHATEVER, the Corp will ploy one country against another and will do what is best ONLY for the Corp.

      1. 1.1.1

        This seems appropriate here. “There are no nations. There are no peoples. There are no russians. There are no arabs. There are no third worlds. There is no west… There is no America. There is no democracy. There is only IBM and ITT and AT&T, DuPont, Dow, Union Carbide, and Exxon. Those are the nations of the world today.” -Arthur Jensen, Network

        Regarding china, i think people in the west overestimate how centralized the power of the chinese government is. It is actually quite decentralized compared to american federalism. And no individual has anywhere close to the same executive power as the american president. Whatever grand strategy they do or dont have is blunted by the constant effort expended trying to control their own people. That effort undercuts any national will to excel on the global stage. The economic power of china is mostly the inevitable result of having a billion people trying to earn a living and not so much the result of sound and/or brilliant “long game” fiscal policy. That’s not to say the chinese arent capable of effective strategy, but the execution thereof by individuals is constantly hampered by a lack of elbow room.


          What? There are no nations! How can anybody agree with that, less than one week after publication of the Chilcott Report about what went on between GWB and Tony Blair, concerning regime change in Iraq. Were the corporations at Crawford as well, telling Tony Blair what to say? I think it’s clear now, that he got his convictions from a different source altogether.

          And as to China, is it a planned economy or not? Are you saying it isn’t the Party, that plots the course of the nation?

          Which is, of course, not to deny, that the world’s largest corporations are too big for any one nation to hold to account. International co-operation is needed, like in the EU, to control them.


            You clearly do not understand even the basics of a trans-national corporation MaxDrei.

            Best for you then not to advertise such lack of knowledge, eh?

            (The Jenson statement must be taken in context, and does not mean the “literal” no nations exist.)

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