12 RENEWABLE ENERGY WORLD MAY–JUNE 2011
NEWS ANALYSIS
up to 90% of the world’s rare earth
minerals are mined in China.
Recent political developments
have led the Chinese government
to reduce the export of these
minerals by around 10% every
year since 2006, much to the
concern of the wider international
market. By controlling the supply
and cost of many raw materials,
China has arguably put itself in a
strong position to indirectly control
a signicant slice of the renewables
market.
The rise in the cost of rare earth
materials could pose a considerable
threat to international customers,
unless alternative technologies are
developed.
While the green revolution has
been playing out in China, its focus
on research and development,
underpinned by an innovative
intellectual property system has
been fundamental in incentivising
relevant domestic innovation.
In its wake are some clear
indications that China is deliberately
moving away from its moniker as
the ‘world’s workshop’ towards
becoming the ‘world’s innovator’.
According to some estimates,
China is set to overtake the United
States and Japan in total number of
patent lings across all sectors later
this year.
Research into registered
intellectual property rights in China
suggests an acceleration trend,
with a growing number of Chinese
companies ling patents and other
registrable IP rights overseas.
Its dedication to modernise
the current policy and legal
framework has recently been
reafrmed with, for example,
the announcement that the UK’s
Ofce of Fair Trading has signed
a Memorandum of Understanding
with China for the cooperation
and exchange of best practice on
competition and consumer policy
and enforcement.
Against this backdrop, what
is the role of China in the global
renewables market and how is
this driven by its IP policies? More
importantly, what impact will these
factors have on Western companies
looking to enter this market?
China’s IP legal framework has
been evolving in recent years to
stimulate growth and innovation.
The rapid increase in patent ling in
China reects a growing awareness
of the need for and benets of IP
protection.
The Chinese government has
also made several amendments to
its patent law since 1992 that have
focused on attracting foreign-
direct investment into China.
These are designed to benet
domestic Chinese companies by
incentivising production in certain
areas, including renewables
markets. However, a number of
foreign companies looking to
locate or invest in China have met
these reforms with scepticism.
Some of the changes so far have
strengthened the quality of patents
granted, making these more
resilient to challenge.
Signicantly, a new form of
compulsory licensing of patents
has also been introduced. While
this initiative, aimed at dealing with
abuses of patent monopolies, is
so far limited to pharmaceuticals,
it has been created to promote
domestic interests.
Specically, companies may now
apply for and be granted a licence
to work a patent that is not being
properly exploited by its owner.
Importantly, this move is in
addition to an existing compulsory
licensing scheme, similar to those
in a number of other countries.
In response to these changes,
many foreign enterprises have
voiced concern that the end-
result may be to force the
licensing in China of foreign-
owned technologies, including
renewables.
The US Chamber of Commerce
has claimed these are anti-IP
policies that detrimentally impact
innovation in green technologies
and will lead to job losses in the
sector.
While the compulsory licensing
scheme is currently restricted to
pharmaceuticals, there are fears
it could be extended to other
industries.
Forced licensing of IP is,
therefore, a potential risk to
Western companies looking to do
business in China. There have also
been reports of changes to taxation
structures that would benet
domestic renewables companies,
and squeeze foreign competitors
out of the market.
Furthermore, the types of
corporate vehicle used by foreign
companies when doing business
in China have recently come under
scrutiny.
Questions over how Beijing may
respond in retaliation to political
pressure from the West increasingly
obscure these issues.
Beyond these current questions,
there is growing consensus that
China now has a strong legislative
framework, which offers effective
protection of IP rights.
A more signicant issue is that
of enforceability, where courts
have struggled to keep up with the
demands of a country experiencing
rapid growth.
Between 2004 and 2009, the
number of civil IP cases in the
Chinese courts rose from 8332 up
to 30,509.
What may still be a relatively
weak system of recovering
damages also means that litigation
is not always the best weapon to
use when disputes arise.
According to the UK Intellectual
Property Ofce, approximately
95% of IP related cases are brought
by Chinese businesses, which often
end up being settled out of court.
However, there are early signs this
may be changing.
As the Chinese market moves
from imitation to innovation, its IP
enforcement regime will strengthen,
with Chinese businesses seeking
greater protection for their own
intellectual assets.
Stronger protection for IP rights
will lter into the court systems and,
longer term, China is likely to be
viewed as a reliable place in which
to litigate.
Statistics from the Supreme
People’s Court of the People’s
Republic of China suggest that
foreign plaintiff/pursuer success
rates in IP cases handled in China
compare favourably to ‘win rates’ in
overseas jurisdictions, with plaintiff
success rates of about 70%.
Similarly, damages awards
are increasing in the Chinese
courts, with Microsoft recently
being awarded over $300,000 in
a claim against a local insurance
company.
While the move to tighten the
Chinese IP framework may be good
news in the longer term, it is unlikely
to dramatically reduce the risks for
foreign investors in the immediate
future.
For Western companies looking
to operate with only their IP in
China, there is a mixed outlook
ahead.
On one hand, if fears over
compulsory licensing are realised
in renewable markets, this may
cause difculties and disincentives
for organisations that aim to exploit
and utilise their IP in the Chinese
market.
For others, however, it may
be seen as an opportunity to
collaborate with local companies,
increasingly eager to build on their
early commercial success.
One such example is the move
by Aberdeen-based SeaEnergy
Renewables to sign a strategic
cooperation agreement with
Chinese state-owned company
Nanton COSCO Ship Steel
Structure Co to develop and market
steel structures for the offshore
wind industry.
The agreement will enable
the companies to cooperate on
a business plan to develop and
market turbine jacket substructures,
towers and access systems for
offshore wind farms.
China is one of the most attractive
countries for foreign investment,
backed by an economy on track to
become the world’s largest towards
the end of the decade.
Signicant progress has already
been made in creating a strong
intellectual property framework,
which will instil further condence
among foreign companies
looking to share and exploit their
technologies locally.
In the meantime, as with
any new market, renewables
companies looking to China must
ensure they secure the appropriate
advice, both at a local and at an
international level.
Gill Grassie
The Chinese government has reduced the
export of key RE-related rare earth minerals
by about 10%/year since 2006, to the
concern of the wider international market
Forced IP licensing is a risk for Western
companies wanting to do business in China.
Questions over how Beijing will respond to
political pressure from the West increasingly
obscures these issues
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Previous Page | Contents | Zoom in | Zoom out | Front Cover | Search Issue | Next Page
RENEWABLE
ENERGY
WORLD
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A
M
S
a
G
E
F