Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 16: PREDOMINANTLY PROCESS PATENT-RELATED ASPECTS OF INFRINGEMENT
As an economy which supplies the world with a great variety of products, China has a huge interest in the inflow of sophisticated manufacturing processes, not least because the country endeavours to climb up the value chain and to become an ‘indigenous innovation’-based economy (Luginbuehl, Chapter 1). Hereby, China is still dependent on advanced knowledge generated abroad. Unlike the majority of tangible products which, once put into market circulation, can be quite easily re-engineered so that patents are the only option to protect them against imitation, processes are normally carried out behind factory walls and have better chances of being kept secret. That is, process patent holders often have the choice between patent or know-how protection. China, on the other hand, can be assumed to have a greater interest in motivating foreign investors, joint venture partners, and so on to disclose their process-related knowledge through patent applications, rather than to keep it secret. Even the implementation of patented manufacturing processes is hardly possible merely on grounds of the information revealed by the patent application but requires additional know-how. The desired knowledge spill-over on national joint venture partners, suppliers, and so on, can only be fully generated if the foreign company provides locals with insights into their implicit knowledge and other know-how that accompanies the patented technology. Far-reaching secrecy out of distrust in the local IP protection framework, accompanied by measures such as splitting up manufacturing processes and entrusting each step to different joint venture partners so as to prevent a single
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