Patently-O Bits and Bytes by Juvan Bonni

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18 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 3

    So let’s define “steal” as knowingly not enforcing IP agreements that China has made with other countries.

    1. 3.1

      Fine. Like I said, if you are going to use “IP theft” or “stealing IP” in print, you should define what you mean by the term in the article. If you do that, I have no objection, because then it is clear what you mean. What I find objectionable is using the word “theft” without being clear.

      We all agree that “stealing” is wrongful. I am not really convinced that there is common consensus that it is wrongful for a jurisdiction to enact lax IP laws. Therefore, when an author describes Jurisdiction K’s law IP laws as “IP theft” or “stealing IP,” the author is deliberately misleading the readers by invoking an idea vaguely that the readers would dispute if it were made clearly. The author should not be allowed to mislead the readers like that.

      If one defines one’s terms clearly, there is no misleading. I expect that most authors do not do this when discussing so-called “IP theft” because they mean to be unclear and misleading.

      1. 3.1.1

        Greg, fair enough.

  2. 2

    I share the concern expressed in the Lynch article (i.e., that a WIPO head from the PRC might use control of the institution to make it easier for Chinese interested parties to access confidential information contained in newly-filed applications before the publication date). Nevertheless, Lynch trespasses against a pet peeve of mine when his opening sentence asserts that “China has… most aggressive in stealing intellectual property… .”

    What does this even mean? How does one “steal” IP? Really, no editor should let the words “IP theft” of “stealing IP” go to print unless the author defines what is meant by these phrases. This is mostly just overstatement in the service of muddleheaded alarmism.

    1. 2.1

      How about making a condition of a company selling or locating in China being that they share the IP? I’d classify that as stealing when it is not required by other countries. How about stealing the plans for the F-35? How about not enforcing patents in China when asserted against Chinese companies when the patentee is an American company? There are many other examples of China’s conduct.

      1. 2.1.1

        How about making a condition of a company selling or locating in China being that they share the IP?

        By definition, imposing a certain quid as the precondition for a quo is not “stealing.” This is called bargaining, which is the very opposite of stealing. I can understand why most businesses dislike this particular condition of the transaction, but still and all it is something to which the bargainer consents (or not) as part of the transaction. It is never taken by force or fraud.

        How about stealing the plans for the F-35?

        Maybe. Is this what the author means by “IP theft”? If so, he should would do better to call it “industrial espionage,” the meaning of which is far more clear than “IP theft.” Of course, the author was not clear about whether he meant industrial espionage when he wrote “IP theft,” which is precisely why I find the term “IP theft” so maddening. It is a term contrived to lump together the genuinely wrong (stealing plans for the F-35) with the merely inconvenient or commercially disadvantageous (making a condition of a company selling or locating in China being that they share the IP).

        How about not enforcing patents in China when asserted against Chinese companies when the patentee is an American company?

        How is this “theft”? There are no IP rights in a state of nature. IP law is a government created creature. You have exactly as many IP rights in a given jurisdiction as that jurisdiction’s IP laws give to you. If the Chinese jurisdiction does not give you as many rights as you might like, that is simply the law—not “theft.”

    2. 2.2

      Or how about allowing pretty much all copyrighted American music, books, and movies be available for pretty much nothing?

      1. 2.2.1

        Once again, this is not “theft.” This is simply China’s sovereign choice. Any given sovereign may grant IP rights or not grant IP rights. If China chooses (within its borders) not to protect copyrights, that is simply the law in China. Such a regime does not take from the author anything that the author ever had in the first place.

        1. 2.2.1.1

          Unless of course Greg, that THAT same Sovereign has committed to do something else under international treaty.

          (just saying)

        2. 2.2.1.2

          Except, Greg, as anon says that China signed international treaties to enforce these laws and this is the basis for China being a member of the WTO.

          1. 2.2.1.2.1

            That might well be a treaty violation, but it is not “theft.” The law in China is whatever the Chinese authorities say that it is. It might well be that China has pledged itself (in an international treaty) to make its law be X, and yet its law is still Y. That is a bad thing, but not all bad things are “theft.”

            So long as the Chinese government says “you have no copyrights in this given work,” then you have no copyrights, and it is not possible to “steal” from someone that which he never owned in the first place. In any event, “infringement” is not “theft.” “Infringement” is infringement. The two are very different.

            When you steal my car, two things happen. First, you have my car. Second, I do not have my car.

            When you infringe my copyright (or patent), it is just not the same. It might well be that you now have a copy of my work, but that does not deprive me of my copy. One can steal a book, or an MP3 player, or DVD. One cannot “steal” a copyright, however. One can “infringe” the copyright, but that is not “IP theft” in any but a deliberately confused (and confusing) sense of the word.

            1. 2.2.1.2.1.1

              Greg is being unusually pedantic and obstinate in his desire to NOT label something as “theft.”

              He advances his personal view that those using the terminology are likely desiring to be “I expect that most authors do not do this when discussing so-called “IP theft” because they mean to be unclear and misleading.

              What Greg does not realize that in his own ardent efforts, it is Greg that comes across as intending to be unclear and misleading.

              One is left to wonder why.

    3. 2.3

      Perhaps the current US administration is bent on rendering not just the UN, the EU, NATO and the WTO nugatory but also, for good measure, WIPO as well. In the eyes of the present administration, does any supra-national, multi-national organisation serve any useful purpose?

      1. 2.3.1

        Thinking of multi-national agreements, did everyone here notice that the IMF’s analysis of the USMCA concludes the treaty will slightly benefit Canada & Mexico, and slightly hurt the U.S.?

        Can someone remind me again why our current administration is backing this treaty? Come to that, can anyone explain why passage of this treaty is regarded as a priority by both the Republicans and the Democrats in Congress?

    1. 1.1

      (In my opinion this blog needs to do something about all the comments that have nothing to do with patent law. It is almost impossible to have a dialogue without 10 or 20 irrelevant comments blasting the comment section.)

      1. 1.1.1

        We both know that Malcolm routinely blasts any and all discussions that he does not like, that he routinely attempts to h1 jack thread discussions, and that he has routinely boasted that he will continue to do so no matter what.

        Happy 14 and 3/4 years of the Malcolm blight.

        1. 1.1.1.1

          You and I anon will have to have a beer at one of the AIPLA meetings.

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