China’s likely to use the plan to create patent thickets – they’ll flood the US with low-quality patents
Charles Duan, 2023 – Adjunct Professor, Assistant Professor (starting fall 2023) and senior policy fellow with the Program on Information Justice and Intellectual Property, American University Washington College of Law; Postdoctoral Fellow, Cornell Tech; member of the Patent Public Advisory Committee, U.S. Patent and Trademark Office. Testimony Before the Subcommittee on Courts, Intellectual Property, and the Internet of the Committee on the Judiciary U.S. House of Representatives “INTELLECTUAL PROPERTY AND STRATEGIC COMPETITION WITH CHINA PART I”, 3/8, https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/duan-testimony.pdf //DH
This glut of low-quality patents cannot be ignored for at least three reasons. First, it strains the USPTO's limited examination resources, potentially delaying the issuance of valuable patents representing commercializable innovation.24 Second and more importantly, it crowds the space of potential liability for American innovators and businesses. A company entering a market often conducts a "freedom to operate" analysis, assessing what patents cover a certain technological area and what licenses the company needs to negotiate. In doing that analysis, the company must wade through all the patents in the relevant area, high-quality or not. A mass of patents from China could multiply this search and legal analysis cost many times over.25 Indeed, these filings may render it more difficult for American firms to protect their own IP rights, as they constitute facially cognizable prior art that could potentially draw out the patent examination process.26
Several pointers suggest how a glut of low-quality foreign patents could end up interfering with domestic innovation. In the analogous field of trademark law, scholars have already worried that high-volume applications for trademark registrations from China are crowding the market so much that the United States might be "running out of trademarks."27 And in the early 2000s, a glut of software patents of questionable validity enabled a variety of patent assertion business models to spring up and harass technology companies and Main Street businesses for decades.28 History suggests that China's strategy of inducing high-volume patent filings regardless of quality may have substantial implications for the American economy.