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Injunctions: How Communist China Is Demonstrably Better Than US at IP Protection
US Intellectual Property Creation - Headed East
Intellectual Property (IP) is the cornerstone building block of any successful society.
It means nothing if you protect physical property theft - if you do not also protect the IP that made the physical property possible.
If you won’t let people steal Microsoft’s new operating system disc from Office Depot - but will allow them to without paying download it online - you are destroying your economy.
If you won’t let people steal music discs from Barnes & Noble - but will allow them to without paying download from the Web the same music - you are destroying your economy.
You are destroying your economy - because if everyone can take everything…no one will ever again make anything.
If you do not take IP protection seriously - you are not taking your society seriously.
One way the United States (US) is fundamentally unserious about IP protection - is its decided lack of use of injunctions in IP theft cases.
Let us briefly visit the legal dictionary:
Injunction: “A court order by which an individual is required to perform, or is restrained from performing, a particular act.”
In IP legal cases, this means the people using the contested IP - and alleged to be doing so without permission from the IP holders - must stop using the contested IP until the courts have settled the case.
Which only makes very basic, very common sense.
“(F)or years and years - through generation after generation of iPhone - Apple has signed all sorts of contracts with Qualcomm. Promising under penalty of law to pay Qualcomm for the use of Qualcomm’s patented ideas.
“Except since April of 2017 - Apple hasn’t paid Qualcomm a penny….
“Apple has sold - by now - way over 200 million $1,000-per iPhone Xs. And hasn’t paid Qualcomm for any of them.
“Oh - And how much is Apple contractually obligated to pay Qualcomm per $1,000 iPhone X? Less than $20….
“Apple still had and has - signed contracts with Qualcomm. In which Apple was and is obligated to pay Qualcomm for the use of Qualcomm’s patents. Apple just isn’t paying.
“Apple filed lawsuits to get out of the contracts they themselves signed. And bizarrely decided they would stop paying Qualcomm - until the court cases were decided.
“Ummm…that’s not how it works. The contracts are valid - unless and until they are invalidated. Which means Apple is on the hook to Qualcomm - unless and until they’re not.”
That mess was finally settled in April 2019. But you see how quite obviously reasonable an injunction would have been in the case.
In fact, you shouldn’t need signed contracts - to get injunctions against thieves of your IP.
To wit: Say I steal your car. I am not allowed to continue to drive the thing all the way through the court process - the initial case and all subsequent appeals - to adjudicate my culpability.
At the very least - the car gets impounded by the cops. Most often - the car is returned to the person who holds the car’s title. Because the person holds the car’s title.
Well, the car title for IP - is a patent, trademark or copyright. Just like the car title, your IP title is a government-issued document that guarantees you certain ownership rights.
Someone shouldn’t be able to steal your patent - and then continue to drive it while you sue him to get him stopped.
Unfortunately, some clowns in gowns bizarrely issued a very ridiculous ruling - to the contrary of reality and reasonability.
“(A) case in which the Supreme Court of the United States unanimously determined that an injunction should not be automatically issued based on a finding of patent infringement.”
Again, imagine any court at all ruling I could continue to drive the car I stole from you while you’re using the courts to prosecute me. And every car thief everywhere can do the same.
You’d be laughing your posterior off at the absurdity - and angry at the egregiousness.
The Court’s eBay ruling - is no less absurd or infuriating.
This ridiculous ruling - along with the Barack Obama Administration’s myriad assaults on IP - was a key component in the destruction of the US as Fortress IP.
“The United States continues to take steps backward due to a variety of self-inflicted wounds. Among them: the omnipresent threats of more patent reform, a Supreme Court that has created unprecedented uncertainty surrounding what is patent eligible, and a Patent Trial and Appeal Board that has been openly hostile to property owners, allowing harassment of certain patent owners repeatedly….”
Guess who is inordinately happy to take advantage of our titanic stupidity?
“China is aggressively pursuing pro-patent policies and becoming inviting to both patent applicants and as a forum for dispute resolution through litigation in Chinese courts. China has introduced new enforcement mechanisms and specialized IP courts to better combat counterfeiting and piracy….”
“Read carefully what China is saying about IP – and it becomes clear what they are really doing.
“Which is setting themselves up to be the recipient of the massive investment coin that will leave the US – as our IP protection continues to deteriorate.
“What China is establishing – is the latest version of their China First protectionism.
“China has spent the last several decades doing this to other US economic sectors – most notably manufacturing. The IP pattern and plot-line…is disarmingly similar.
“The US spent decades imposing all sorts of stupid, expensive government policies on domestic producers. High taxes and countless regulations – followed by even higher taxes and even more regulations.
“Thereby making US domestic production…heinously unattractive.
“Meanwhile, we allowed China to impose all sorts of impediments to our products entering their market. High tariffs and low import limits – followed by even higher tariffs and even lower import limits….
“All of which makes US domestic production…even more heinously unattractive. And moving instead out of the US and into China…more and more alluring….
“And this blueprint – is exactly the model China is looking to replicate with IP.”
Included in Communist China’s IP protection? Imposing injunctions on patent thieves.
“Since a preliminary injunction can stop acts infringing upon IP rights quickly before the final judgment for an action is made, or even before the action is filed, it is increasingly used by IP rights owners and granted by courts in a trend that further strengthens the protection of IP rights in China.”
Which only makes very basic, very common sense.
Very basic, very common sense - is something we in the US seem to have nigh totally lost.
We’d better very rapidly reacquire it.
Or we’d better very rapidly learn to read and speak Mandarin and Cantonese.
This first appeared in Red State.