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IP: More on Curry Patent
From: Dave Farber <farber () cis upenn edu>
Date: Tue, 23 Nov 1999 17:30:43 -0500
From: "Andrew Wolfson" <awolfson () hotmail com> To: farber () cis upenn edu Cc: jrburdett () venable com Subject: More on Curry Patent Date: Tue, 23 Nov 1999 13:39:45 PST Dave, a colleague sent me the following regarding a recent IP E-mail --a fascinating analysis of American and Japanese business cultural differences. Please feel free to post it. --Andy Wolfson ---------- Andy, Thanks for the interesting story. Japanese "patents" are fascinating for a number of reasons, not the least of which their prose as pointed out in this article. There are two types of Japanese "patents" -- a "kokai" (literally meaning "open to the public") and a "kokoku". A kokai ultimately leads to a kokoku if the appropriate fees are paid. Unlike U.S. patents, which provide no rights until they issue, both the kokai and the kokoku in Japan grant rights to their owners. Another fascinating distinction between the patenting philosophies of Japan and the U.S. is the respective approaches to claim drafting. Here, patent applicants typically try to obtain broad protection and work toward the broadest possible claims. Japanese claims, in contrast, usually are much more narrow in scope. If you visualize the whole patent process as erecting a fence around your intellectual property, the claims are the pickets in that fence surrounding the intellectual property representing your patent portfolio covering your products/services. We in the U.S. prefer to build fences having broad pickets, because we are more offensive minded and are likely to assert our patent claims against our competitors. In Japan, patent applicants prefer to build fences having narrow pickets. You may also note that the Japanese generally are not as litigious as we. Accordingly, their claim drafting philosophy is more defensive minded. To take the picket fence analogy one step further, imagine (as a U.S. patent owner) that one of your competitors invalidates your patent. The absence of that broad picket that represents your patent leaves a broad hole, exposing your products/services to further competition. Your picket fence is not as strong as it once was. In the same process (i.e., opposition to or invalidation of a Japanese patent) across the Pacific, the owner of the Japanese patent loses a narrow picket, exposing its products/services to a lesser degree. The Japanese picket fence remains relatively strong and, thus, more of a defense against competition. Along with their non-litigious nature, the Japanese "respect" patents to a greater degree than we may in the U.S. We, more often than not, look to aspects of a narrow claim, and design around or consider it non-infringing. Therefore, our products/services may cut very close to the claims of another's patent. We also consider the potential to invalidate seemingly obvious patents (e.g., the pizza described in the article), and are prepared to fight to prove it. Japanese competitors look to the narrow claims and treat them with great respect. For example, Canon has a patent portfolio of about 1,000 Japanese patents (many of which are of the "kokai" variety) just on its laser printing technology. One of those patents covered a toner cartridge that included a "key" (i.e., a molded shape on the outside of the cartridge), which locked the cartridge in place within the printer. This was done to discourage competitors from refilling spent Canon toner cartridges, and selling the refills at a price lower than Canon's. Like razors and razor blades, greater revenues are generated by laser printer manufacturers out of the toner cartridge sales than the laser printer sales. It was, therefore, vitally important to Canon to prevent its competitors from "horning in" on its toner cartridge sales. The tale is long, but its moral is important. Every other Japanese laser printer and/or toner cartridge manufacturer knew that Canon's patent was very narrow and potentially invalid. Nevertheless, they avoided even the appearance of infringement, because they knew even if they could defeat Canon on this "picket", one or more of the other 999+ patents could be used by Canon on aspects that Canon's competitors were not even aware. Best regards, Jim James R. Burdett, Esq. Venable, Baetjer and Howard, LLP 1201 New York Avenue, N.W. Suite 1000 Washington, D.C. 20005 (202) 962-4893 jrburdett () venable com ---------- ----Original Message Follows---- From: Dave Farber <farber () cis upenn edu> Reply-To: farber () cis upenn edu To: ip-sub-1 () majordomo pobox com Subject: IP: curry patent again Date: Tue, 16 Nov 1999 18:56:18 -0500 NOVEMBER 19, 1999 VOL. 25 NO. 46 The Hot Topic of Patents Now - the Japanese curry, pizza and hot dogBy MICHELE ZACK Los Angeles Who invented curry? The fiery dish is mainly synonymous with India, but a controversy is now building up over two Japanese businessmen who have shoved culinary history aside and lodged a patent application claiming they are the true inventors. "Patent buccaneers" and "bio-pirates" are two of the more polite reactions from Indians to the audacious bid for fame and riches by entrepreneurs Hirayama Makoto and Ohashi Sachiyo. Their claim, titled "Cooking of Curry" (file number JP7289214), was made under an application by House Foods Corp., one of Japan's top food and drink companies. It says: "The cooking of curry is carried out by mixing ingredients such as onion, potato, carrot and meat . . . with water . . . extracted spices at least containing the extract of turmeric, cumin and coriander, heating over a slow fire for 10-20 minutes after boiling, adding wheat flour roux and curry powder or adding curry roux and heating until the mixture becomes viscous." As cheeky as they may appear to be, the people at House Foods are not the only ones jumping on Japan's love affair with the curry. On the European Patent Office's worldwide patent list are dozens of other Japanese applications, from curry yogurt and curry-sprinkled rice to low-fat curry sauce, hamburger curry, instant curry, curry soup and curry crackers. Not content with getting Indians hot under the collar, the Japanese have also taken aim at Italy. More than 80 Japanese firms claim to have come up with either the pizza or its cooking process - for example, patent number JP8116934. Aided by a diagram with numbered parts, "inventor" Komiya Michinobu says: "This pizza is constituted by forming a part coated with a pizza sauce and an uncoated part 4a on the surface of a required pizza dough 1, baking the resultant dough so as to puff the uncoated part 4a upward. The resultant pizza is capable of not only remarkably manifesting a voluminous feeling but also enriching decorativeness, elegance . . ." Lousy prose, but you get the point. Taira Yoshinobu's hot dog (JP9019275) is so simple, you wonder why no one in the U.S. ever thought of shoving a sausage in a bread roll before he claims to have come up with the idea in 1997. His application begins: "Food ingredient 3 is inserted into a food ingredient-housing cylindrical part 2 . . ." About 400,000 patent applications are filed in Japan every year, 30% of which are successful. The phenomenon is a large and growing headache for the Japan Patent Office, which clearly needs more guidelines. It says: "One cause of these problems is that Japan has not established methods to appropriately evaluate intellectual property." Globally, the issue is regulated by the Trade-Related Intellectual Property Rights agreement, which gives exclusive rights for 20 years to patent-holders. On products it rules: "The exclusive rights conferred will prevent others from the acts of making, using, offering for sale, selling or importing for these purposes that product." On processes: "The exclusive rights conferred will prevent others from the act of using the process, and from the acts of using, offering for sale, selling or importing for these purposes at least the product obtained directly by that process." Behind the legalese is a clear message - that anyone who secures a patent for, say, fish-head curry will have the right to assign the patent, draw up licensing contracts . . . and get rich. There are exceptions, usually limiting rights to certain countries only. The World Trade Organization has the question of patents on its agenda for its Seattle conference Nov. 30. Judging by what's happening in Japan, it should produce some heated exchanges. © 1999 Asiaweek. 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