Protecting Intellectual Property of American Businesses from Chinese Espionage
It takes months or years of research and development to develop one successful product and transform it into a thriving company. For every one product created, at least two likely failed—even after investing significant resources.
The reward for transforming an industry or market with a novel idea is intellectual property (IP) protection. U.S. law protects patents, trademarks, and copyrights, each of which provides the creator with an exclusive right to produce and sell the creation.
The developer then sells such items—like an iPad, novel computer chip, or manufacturing process—at a markup. The markup enables the developer to recoup research and development expenses while turning a profit.
But foreign businesses (or even governments) who rip off intellectual property of U.S. businesses and individuals threaten profits, research, and sometimes our national security. One country, in particular, has proved a complex culprit in recent years: China.
U.S. intellectual property laws are designed to protect the intangible assets of individuals and businesses. Intangible assets include trade or manufacturing processes, trademarks and trade dress, design and manufacturing patents, and copyrights.
American businesses who register their IP with the U.S. Patent and Trademark Office gain the exclusive right to produce, manufacture, sell, and license their products. However, IP protections stop at the U.S. border—other countries have no obligation to respect our protections.
Nonetheless, countries including China have signed on to cross-border intellectual property treaties. Some of the most well-known include the United Nations’ World Intellectual Property Organization and the Berne Convention for the Protection of Literary and Artistic Works.
But these international agreements haven’t prevented an orchestrated market of copycats and in some cases, state-sponsored espionage of IP products. For example, Apple has suffered a string of patent dispute losses in Chinese lawsuits. In 2016, the Chinese Intellectual Property Office ruled that Apple’s iPhone 6 and 6s designs infringed on a Chinese manufacturer’s patented smartphone.
While of course it’s possible for an American company to infringe on an IP product of another international company, international observers noted that this ruling would “embolden” Chinese copycats by encouraging them to file more claims against tech giants.
Currently, Apple faces one of its largest IP suits in China. A Chinese technology company known as Xiao-i has filed a $1.4 billion claim alleging Apple’s Siri infringes on its patents. This is just another case in a long line of infringement actions brought by Xiao-i.
In California there’s another dispute between a fintech startup and a SPAC that never came to be because 31 year old investor Yida Gao of Shima Capital derailed his employers plans for a potential future SPAC and has shifted the IP to a new company he runs called Aurora Technology Corporation may be using the IP with only a little bit of litigation to overcome now. As you can see big and small firms are susceptible to these hacks.
With the difficulty of protecting IP rights in China, you may wonder why businesses seek to enter the Chinese market. The answer? China’s large population and rapidly growing middle class. The sheer population difference between China and the U.S. means that businesses can reap exponentially larger profits overseas.
Before entering the market, both new and established businesses should apprise themselves of Chinese intellectual property laws. Because of the globalization of commerce, even international businesses who don’t plan to sell in China should still file for protection.
As opposed to the U.S. system, in China, a business registers its patent, trademark, or other IP product with the appropriate government agency. For patents, you should file both core and ancillary technologies with the Chinese State Intellectual Property Office. IP advisors recommend businesses register the English, Chinese character, and Chinese pinyin trademark names with the Chinese Trademark Office.
But even availing yourself of both American and Chinese IP laws doesn’t necessarily mean that you’ve entirely prevented IP theft. For instance, U.S. Customs and Border Protection data from 2020 showed that more than 40% of all counterfeit goods seized were produced in China. These copycat goods spanned multiple industries, from luxury goods to medical devices, car parts, software, and movies.
Copycat products aren’t the only problem. Possibly even more pervasive is corporate espionage. This occurs when an employee of an American business obtains proprietary information or special access to business secrets and then shares that information with a Chinese company.
For example, the University of California system recently sued retailers of certain lightbulbs with labels claiming that the bulbs were “Made in China.” The University argued that these lightbulbs used patented filament technology that Chinese manufacturers illegally obtained, produced, and then shipped into the U.S. for sale.
In another case, the U.S. Department of Justice charged a former General Electric (GE) executive with “economic espionage.” The executive allegedly stole multiple electronic files containing proprietary data about gas and steam turbines. He planned to use this data to “advance the interests” of himself and the Chinese government.
As opposed to these other examples, the GE case underscores a particularly devious form of corporate espionage. The GE executive was a Chinese national working for an American business who intended to deconstruct GE’s technology for his own personal benefit and that of China. To prevent this type of corporate espionage, new and established entrepreneurs should (1) register their IP with the U.S. PTO, (2) register their IP with the appropriate Chinese authority, and (3) consider using non-disclosure or non-compete agreements with employees.
Then just last year, a U.S. federal court found a Chinese intelligence officer guilty of economic espionage and attempted theft of trade secrets after he tried to steal engine technology from an American aviation company. The court found that the Chinese government intended to use this proprietary information to create an aviation company capable of competing with Boeing and Airbus.
Even though the Chinese government has indicated its intent to curb economic espionage, American businesses continue to expect to lose certain IP rights just as the price of doing business in China.