China is driving a cycle of healthy growth in global intellectual property activity, and practitioners expect this to continue, writes Vanessa Ip
While political divisiveness in the West saw some incredible about-turns in foreign policy in the past year, there have also been a number of dramatic developments of late in intellectual property (IP) internationally that are expected to have a significant impact on how foreign investors protect, enforce and manage their IP in 2017 and beyond.
In the coming years, legal practitioners predict that Chinese applicants will increasingly look to obtain IP rights overseas. According to Morgan Chu, a partner at Irell & Manella in Los Angeles, one of the most important developments for the global patent system is PRC companies’ growing interest in, and orientation towards, patent assertion.
“As one illustration of this, in recent years Huawei has often filed more patent applications than any other company in the world,” he says. “This trend may have a large impact on global patent practice going forward … The fact that Chinese companies are now using US patent litigation even against each other shows how central this tool may soon be for Chinese businesses.”
According to a memorandum by US law firm Fried Frank titled Intellectual Property Outlook: Cases and Trends to Follow in 2017, over the past several years, the US Supreme Court has become increasingly involved in IP law. The court recently issued landmark decisions in areas such as patent eligibility, indirect infringement, the definiteness requirement and enhanced damages. Fried Frank predicts that the renewed focus on IP law will continue into 2017, with the US Supreme Court scheduled to issue decisions addressing a variety of key issues.
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In Switzerland, as of 1 January 2017, new laws and regulations governing “Swissness” entered into force. The new provisions will determine the conditions under which goods and services may be labelled with a Swiss indication of origin (e.g. “Swiss Made”, “Swiss Quality”) or a Swiss cross.
“One of the reasons for the enactment of the bill was the fact that in the past, products made in China were often offered in Switzerland with a designation of Swiss origin – e.g., the Swiss flag on the front,” says Philipp Groz, a partner at Schellenberg Wittmer in Zurich.
He says in the future, this will no longer be permissible under Swissness legislation, which requires industrial products with a Swiss designation of origin (or similar designations, such as “Swiss style”) to have at least 60% of the manufacturing costs to have occurred in Switzerland, and that the activity that determines the product’s essential characteristics must take place in Switzerland.
“Products imported from China that do not comply with these requirements may be seized at the border and it would be unlawful to import, offer or sell them in Switzerland,” says Groz “This will have implications for Chinese manufacturers and suppliers of products that are intended to be sold in Switzerland.”