China's Coming Patent Wars

PriceWarterhouseCoopers publishes an interesting annual summary of patent filings and judgments.  See http://www.pwc.com/us/en/forensic-services/publications/2013-patent-litigation-study.jhtml for this year’s. 
Probably anyone with an interest in patents would want to read it, but a few of my readers might want to read it too.  This is part of a coming information war with China, and China is going to use our own patent system against us.  

I noticed the country filings were missing from this year’s, but they were included in the 2012 report.  They showed the U.S. still in number one for sheer numbers, and Japan a close second;  Germany is third.  China was fourth, but the curiosity about China was not its rising numbers, but the companies filing the most patents, Huawei and ZTE. 

For a full discussion of why the U.S. government might find objectionable these companies involvement in the telecommunications infrastructure  you can read my first book on The Chinese Information War. http://www.amazon.com/s?ie=UTF8&field-author=Dennis F. Poindexter&page=1&rh=n%3A283155,p_27%3ADennis F. Poindexter where I noted the ability of the Chinese to circumvent or use our laws against us.  We are too slow to keep up.  This is certainly a thinking ahead and using our system to its maximum.  Once they start filing patents, they can then bring patent suits against every major player in the telecommunications world.  They don’t have to win to be successful.  They just have to play. 

Discovery in the Apple and Samsung wars has produced volumes and volumes of e-mail and inside information about strategies and development efforts.  China’s filings will do the same, but Samsung and Apple have not been accused, by the Federal government, of being too closely tied to the Intelligence services of another country.   Huawei and ZTE have been.   

These two will be able to suck in millions of private e-mails and strategy documents totally unrelated to the specific area being examined.  Few e-mails are limited to single aspect of a particular piece of technology.  They can look at e-mail from partners and clients if they bear on the subject.  Apple looked at a document Google wrote to Samsung about the look and feel of a smartphone, that swung the jury in Apple’s favor, and a billion dollar award.  

These two companies, with their government connections and Communist Party influence, are unable to keep these proprietary documents from getting back to China, even if they wanted to.  The beauty of the whole idea is the Chinese don’t have to expose themselves by hacking companies they are bringing suit against.  We will turn things over to them on a court order. 

It is a clever way to collect business intelligence in the name of preserving patents, legitimately filed.  If our companies did the same thing, working together with our government, it might be fair.  Instead, we better start preparing for war.   They will be using our own court system as a weapon against us. 

Can Journalists Keep a Secret?

In an August 7, 2013  Wall Street Journal article, Jess Bravin had a story called Echoes from a Past Leak Probe, describing a little known event in World War II, involving Stanley Johnston, an embedded reporter (before they called them that) from the Chicago Tribune.  Stanley apparently stumbled upon an intelligence file, presumably a classified one, while travelling with the Pacific Fleet.  That gave him the idea that our Navy had broken the Japanese naval codes and knew in advance what they were going to do.  This was in 1942, at a time when the war could have gone either way in the Pacific and Allied lives were at risk in a number of places. 

Johnston wrote the story, apparently got it past censors who, in those days, were supposed to be at watch for this type of thing, and the Tribune published it.   This is certainly what we call Freedom of the Press.  It far exceeded any damage that might be done by similar incidents today.  Edward Snowden worked with Glenn Greenwald at the Guardian and Bradley Manning with Wikileaks, giving them cover for the release of information that they knew was important to National Security.  Manning was not convicted of aiding the enemy, and there is a good chance that Snowden wouldn’t be either.  A few would argue that neither one of them, compared to Johnston, had the same level of risk to soldiers in the field, fighting a known enemy. 

The law was on Johnston’s side, according to the analysis done by the Justice Department, though the same type of teeth gnashing done by the Justice Department today, made James Rosen, Fox News, a co-conspirator in a case of apparent espionage.  That case was nowhere near as dangerous as our knowledge of Japan’s codes.  Perhaps they are trying to break new ground in the Attorney General’s office.  That might not be a such a bad idea, though there are much better ways to go about it.  It was clumsy, at best.

The courts seem to want to shy away from defining what is legitimate conduct by journalists, but they have expanded the covered definitions of who is a journalist to almost anyone who can type.  There is a good question about whether giving national security secrets to an Internet-connected world is journalism.  Is giving the story to the Chicago Tribune to run, knowing the consequences to our naval forces in the Pacific, something other than journalism?  We need to reexamine what journalism is, and put law behind the limitations that would infer. 

Freedom of Speech is my Constitutional right, but there are limits on what that allows.  I can’t put other people at risk by yelling “Fire” in a crowded theater.  I can’t claim someone is behaving in a particular way, if it is libelous.  Yet, in the name of journalism, we can allow a citizen of the United States to give away secrets that will harm other persons in our country.  Let the Justice Department focus on the right aspect of what constitutes journalism.  We need new laws that will limit this kind of behavior or we won’t have any secrets left.