Now YOU Can Be A Spy Shot Paparazzo (No Prior Knowledge Required)
Hunting prototypes for spyshots can be a frustrating and (if done in Finland) frosty affair. Carmakers are taking extreme measures to ward off paparazzi. Carmakers camouflage their prototypes (see video.) This doesn’t faze bloggers. Bloggers found a way to catch future cars in the comfort of their own home or office: From a ragtop Panamera in egmcartech to a similarly topless Mercedes AMG SLS in Topspeed, no future car is safe from bloggers anymore, even before the first prototype is built. Understandably, the Chinese are highly interested in the technique. You can learn it in a few minutes. What is the secret?
Patented Panamera ragtop. Picture courtesy egmcartech.com
Patent applications. Bloggers and industrial spies mine patent applications for future car designs. Contrary to popular belief and public whining, there is no automatic copyright on car designs. As long as someone else doesn’t blatantly copy the design 1:1, it’s fair game. Design patents offer some protection.
However, here is the hitch: The designs must be filed. In public. Accompanied by drawings. How could one protect a design, without a drawing enclosed with the patent application? Unfair? As Wikipedia explains it in layperson’s terms: With a patent, “an inventor is granted a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.”
There is no camouflaging in these drawings. Au contraire: The novel aspects of the design must be clearly discernible. Otherwise: No patent.
In China, the matter gets even trickier. Very much contrary to popular belief, there is a fully functioning patent system in China, patents are being enforced. If they have been filed. Filed in China, not elsewhere. A lot of whining about “intellectual property robbery” comes from a lack of understanding of the Chinese patent system.
Patented AMG SLS ragtop. Picture courtesy topspeed.com
Highly misunderstood: China, unlike the United States and most other countries, follows the first-to-file doctrine. If a patent application is filed for the same innovation, the first to file will get the patent. You snooze, you lose.
It gets even dicier: In the United States, you can “publicly disclose” (use, talk about, advertise) an innovation, and then you have a full year to file your patent application at your leisure. In China, public disclosure before filing in China pretty much assures that you will not get the patent. You must file the patent before disclosure.
Up until quite recently, it was relatively easy for someone else to file in China for a patent that had already been granted to someone in another jurisdiction, say in the United States. If you filed for a patent in the U.S., but forgot to file in China, someone else could easily get a utility, or design patent in China. The patent holder could then use this patent to prevent others, including the original patent holder, from producing or selling the product in China. Howling ensued each time that happened, but it‘s the law. Well, it was.
Patented Traverse. Picture courtesy TheTycho.com
Effective on October 1, 2009, this loophole was closed. Under the amended patent law, an invention loses its novelty in China if it has been before publicly disclosed in the world. If it’s not novel, it can’t be patented. Neither by someone else, nor by yourself. Patent lawyers advise to file a Chinese patent application before there is any disclosure of the invention anywhere else. Now isn’t that counter-intuitive? You invent something in the U.S.A., and the first patent you apply for is in China? If you don’t want to get ripped off, yes. As a side effect, China receives prior knowledge of anything you think the Chinese shouldn’t copy, but them’s the rules.
Companies that ignore or misunderstand these differences (the above is a very condensed version, more for a hefty fee,) complain loudly about IP theft and routinely lose in Chinese courts. Companies that understand the system successfully file patents in China and usually win the case. Maybe. Anyway, they have a fighting chance.
A design patent in China is much like a design patent in the United States, or elsewhere. It protects “any new design of the shape, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.” Just like elsewhere, the realistic protection from a Chinese design patent is limited. There is a huge grey zone between patent infringement and inspiration. A design patent in China provides protection for ten years. And at the very least, it prevents third parties from copying body parts of the car for use in the after sale market. There are voices that want to kill design protection for repair parts. The voices are not from China. They are from Brussels. Horrors! The House of Representatives blatantly copied the EU ideas! Someone call a lawyer.
Back to the bloggers: A side effect of the above is that many advanced designs appear first in patent applications. Such as the drawings for the new Buick Excelle, which a few days ago were confirmed by my new Beijing buddy TheTycho who found a new Buick Excelle sloppily parked on the proverbial grassy knoll.
He used the same technique to root out the design of the new Chevy Traverse. The heavy lifting was done by the Chinese site Bitauto, which must have a permanent correspondent at China’s State Intellectual Property Office (“SIPO”.) The new Traverse should be on sale in China by the end of the year. Good news for the UAW local in Lansing, Michigan: The Traverse will be exported to China. And because it’s a patented design, it can’t be easily ripped off. At least in theory.
However, everybody can be a spy shot paparazzo these days. Just sift through the files.
Bertel Schmitt comes back to journalism after taking a 35 year break in advertising and marketing. He ran and owned advertising agencies in Duesseldorf, Germany, and New York City. Volkswagen A.G. was Bertel's most important corporate account. Schmitt's advertising and marketing career touched many corners of the industry with a special focus on automotive products and services. Since 2004, he lives in Japan and China with his wife <a href="http://www.tomokoandbertel.com"> Tomoko </a>. Bertel Schmitt is a founding board member of the <a href="http://www.offshoresuperseries.com"> Offshore Super Series </a>, an American offshore powerboat racing organization. He is co-owner of the racing team Typhoon.
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The contents of patent applications aren't disclosed publicly until the patent is granted, right? I know it was that way in the US when I worked on patents over 10 years ago. And some patents take years of litigation to get, so often the patent is granted after the product is on the market (that's why you sometimes seen patent pending" on products) so given that, how often are design drawings really publicly available through the patent office well in advance of the actual car?
Actually almost every country follows the First to file rule vs. US's first to invent rule. Same with the no prior disclosure in foreign country rule.