Enforcing intellectual property rights in weak appropriability regimes: the case of de facto protection strategies in China.
* Many emerging economies are characterised by weak appropriability systems and absent legal systems to punish imitators. This places foreign firms' intellectual property rights at risk, because existing appropriation methods, such as patents or secrecy, cannot function effectively. This concern especially applies to China, the empirical context of this article. Such adverse conditions force managers to devise new strategies to safeguard their firms' intellectual property rights. Yet no evidence describes whether strategies exist, which forms they take, how they have evolved or how they get implemented.
* This article addresses this knowledge gap and explores strategies that managers have developed to achieve de facto [Latin, In fact.] In fact, in deed, actually.
This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate. protection, despite China's weak appropriability system. The analysis systematically explores 13 eases of foreign firms with wholly owned subsidiaries in China.
* The findings confirm that de facto strategies exist, describe how they work and detail how they were achieved. The findings suggest implications for both managers and academics.
Keywords: Intellectual property rights * China * Appropriability regime * De facto protection strategies
Emerging economies often contain weak appropriability regimes, such that the country's legal system provides little or no effective protection for the intellectual property rights (IPR IPR Intellectual Property Rights
IPR Inprocess/Inprogress Review
IPR Industrial Property Rights
IPR Institute for Policy Research (Northwestern University and University of Cincinnati)
IPR Institute of Public Relations ) of a foreign firm, and the enforcement of a foreign firm's IPR is difficult if not impossible. (1) In such countries, firms from more developed economies often cannot protect their IPR using the same appropriation measures that they would commonly use at home.
This concern especially applies to China, one of the most risky environments with regard to IPR protection, especially for enforcing foreign firms' IPR in markets and before the courts (European Commission 2004; United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Trade Representative 2005). Yet many foreign firms have invested in business operations Business operations are those activities involved in the running of a business for the purpose of producing value for the stakeholders. Compare business processes. The outcome of business operations is the harvesting of value from assets in China, including research and development (R&D) activities (United Nations Conference on Trade and Development United Nations Conference on Trade and Development (UNCTAD)
Organ of the United Nations General Assembly, created in 1964 to promote international trade. Its highest policy-making body, the Conference, meets every four years; when the Conference is not in session, the 2005). Were the impact of China's weak appropriability system truly disastrous, foreign firms would have exited the market, either voluntarily or because of the loss of vital IPR and the subsequent loss of competitive advantage. Yet this exodus seemingly has not happened.
In accordance with recent exploratory contributions (Anand and Galetovic 2004; The Swiss-Chinese Survey 2006), we presume pre·sume
v. pre·sumed, pre·sum·ing, pre·sumes
1. To take for granted as being true in the absence of proof to the contrary: We presumed she was innocent. that managers create strategies that can protect their firms' IPR in China, despite the shortcomings of IPR enforcement. We refer to such strategies as de facto protection strategies, defined as follows: A strategy crafted by local managers of a foreign firm, active in an emerging economy, that successfully can protect the firm's IPR without using the legal system, formal litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. or lawsuits.
Virtually no analyses investigate if these strategies truly exist and how they might be implemented. Extant ex·tant
1. Still in existence; not destroyed, lost, or extinct: extant manuscripts.
2. Archaic Standing out; projecting. theory about how firms protect IPR remains limited to samples from developed economies, such as the United States (Cohen cohen
(Hebrew: “priest”) Jewish priest descended from Zadok (a descendant of Aaron), priest at the First Temple of Jerusalem. The biblical priesthood was hereditary and male. et al. 2000; Levin lev·in
[Middle English levene, levin; see leuk- in Indo-European roots.] et al. 1987), Japan (Cohen et al. 2002), Germany (Blind et al. 2006) and Switzerland (Harabi 1995). To the best of our knowledge, no systematic discussion considers how firms protect IPR in emerging economies in which the actual enforcement of IPR is difficult, if not impossible. Yang yang (yang) [Chinese] in Chinese philosophy, the active, positive, masculine principle that is complementary to yin; see yin, under principle. et al. (2004) focus on reactive strategies to fight product piracy piracy, robbery committed or attempted on the high seas. It is distinguished from privateering in that the pirate holds no commission from and receives the protection of no nation but usually attacks vessels of all nations. if counterfeits have appeared in the market, but no research analyses which, if any, measures firms might take to prevent IPR infringements.
This article represents an attempt to shed light on these questions. Specifically, we attempt to (1) develop a theoretical understanding of how a firm can protect its IPR in an environment in which the enforcement of IPR is difficult or impossible, (2) inform managers about de facto strategies and how they are applied and (3) discuss how de facto strategies identified in the specific context of China might apply to other emerging economies. Our paper proceeds as follows: We first provide some background about known appropriation mechanisms and why they seem unlikely to work in China. We then explain the methodology we use for our exploration and feature our results with content analyses of interview data that reveal firms' de facto protection strategies. Finally, we discuss the implications of our findings.
Appropriation of IPR in Developed Versus Emerging Economies
A firm can appropriate economic benefits from its innovations through formal measures (e.g., patents, utility patents, trademarks, industrial designs, copyrights) or complementary measures, such as moving quickly down the learning curve, gaining a head start on commercialisation, achieving superior sales and service (complementary assets), ensuring secrecy through legal mechanisms (e.g., nondisclosure agreements) or undertaking strategic legal moves (e.g., threatening competitors with lawsuits).
Firms often use patents, which grant the innovating firm the exclusive right to commercialise its innovations, to appropriate economic rents from innovations. To ensure the enforcement of these exclusive rights, a strong legal system must, through a credible threat of high compensation payments in the case of patent infringements, deter competitors from imitating. The actual value of a patent is essentially unknown until it gets effectually ef·fec·tu·al
Producing or sufficient to produce a desired effect; fully adequate. See Synonyms at effective.
[Middle English effectuel, from Old French, from Late Latin defended in court. Patents legally can be 'invented around' and may provide little protection, because the legal requirements for upholding their validity or proving their infringement are high. Thus, holding a patent does not totally prevent rivals from entering a market. Moreover, in most industry sectors, patents do not confer perfect appropriability. In these sectors, technology moves so fast that patents, which require significant lead times for filing and defending, seem almost irrelevant (Mansfield 1981, Mansfield 1986). A recent meta-analysis of five empirical studies Empirical studies in social sciences are when the research ends are based on evidence and not just theory. This is done to comply with the scientific method that asserts the objective discovery of knowledge based on verifiable facts of evidence. shows that four rank patents low in terms of their perceived effectiveness. Except in the chemical and pharmaceutical industry, patents are not the preferred means of appropriation (Sattler 2003). In addition, the use of patents has changed from a mechanism of appropriation to a form of strategy, such that patents represent portfolios of 'bargaining chips' that firms use to block the innovations of competitors (Granstrand 1999; Hall and Ziedonis 2001).
If patents are mostly strategic, complementary mechanisms must take over the appropriation function. These mechanisms include moving quickly down the learning curve, exploiting lead time advantages to stay ahead of imitators, using complementary assets (e.g., complementary sales and services) to offer better customer satisfaction than imitators can, using secrecy enforced by nondisclosure agreements and special clauses in employment contracts to keep employees from whistle-blowing technological secrets to competitors and employing strategic legal moves against imitators, such as retaliating by threatening lawsuits and compensation payments. In industries such as semiconductors and computers, the advantages of a head start, which include setting up production, sales and service structures and moving down the learning curve, appear far more effective than patents. Finally, to protect product processes, most firms prefer secrecy over patents (Arundel and Kabla 1998; Mazzoleni and Nelson 1998; Teece 2002).
Yet neither patents nor complementary measures work well as appropriation mechanisms in an emerging economy such as China. China formally has passed IPR laws, joined all major international IPR-related conventions and become a member of the World Trade Organization, which obliged it to abide by To stand to; to adhere; to maintain.
See also: Abide the TRIPS (Trade-Related Aspects of Intellectual Property Rights) regulations. The major Chinese laws pertaining per·tain
intr.v. per·tained, per·tain·ing, per·tains
1. To have reference; relate: evidence that pertains to the accident.
2. to IPR are the Trademark Law (1982), Patent Law (1984) and Copyright Law (1991). China also has joined the Paris Convention for the Protection of Industrial Property The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. (1985), the Madrid Agreement on the Registration of Marks (1989), the Berne Convention for the Protection of Literary and Artistic Works For the treaty establishing the General Postal Union, see .
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention (1989), the Universal Copyright Convention The Universal Copyright Convention (or UCC), adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention. (1992) and the Patent Cooperation Treaty The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its Contracting States (see Accession section below for current membership (1994). Despite this record, China barely enforces these existing laws, which results in a paradox: Despite the formal presence of IPR laws, a foreign firm's IPR is difficult to enforce in China.
We believe that China provides a drastic example of the seemingly paradoxical effect that results when a state appears interested in passing IPR laws while simultaneously showing little interest in enforcing them. (2) Previous research further suggests that this effect relates tightly to the level of economic development.
In developed countries, IPR laws protect a highly developed stock of knowledge and technology against domestic and foreign imitation. Strengthening patent rights stimulates innovation (Watal 2000), and firms rely on the courts to enforce the law and uphold the validity of IPR protections (Jaffe and Lemer 2004). In an emerging economy however, this picture is very different. These countries must manage the difficult problem of encouraging the inflow in·flow
1. The act or process of flowing in or into: an inflow of water; an inflow of information.
2. of foreign technological knowledge, to help domestic firms benefit from technology diffusion, while also reassuring foreign firms that their IPR will be protected. We believe this dilemma leads to stronger IPR legislation in an emerging economy but ineffective enforcement of this very same legislation.
Stronger IPR legislation should attract foreign direct investment (FDI FDI
See: Foreign direct investment ) and thus stimulate economic development. In addition, strengthening IPR legislation has a positive effect on international trade (Maskus and Penubarti 1995), licensing and exports (Smith 2001; Park and Lippoldt 2005) and economic growth (Gould and Gruben 1996; Park and Ginarte 1997). Countries that improve patent protection benefit most from the transfer of foreign technology (Mowery and Oxley 1995). Thus, strengthening IPR legislation seems a promising strategy for an emerging economy to attract foreign investors.
However, it seems less clear whether the subsequent enforcement of this legislation benefits the emerging economy as much. The benefits of stronger IPR legislation may be offset by the costs of enforcement, such as higher prices of information products, foreign exchange outflows, job losses, reduced domestic production of derivative information goods and administrative costs administrative costs,
n.pl the overhead expenses incurred in the operation of a dental benefits program, excluding costs of dental services provided. (Correa 1995; Primo Braga 1989, 1990). Furthermore, because developing countries tend to perform adaptive or imitative im·i·ta·tive
1. Of or involving imitation.
2. Not original; derivative.
3. Tending to imitate.
4. Onomatopoeic. R&D, enforcing foreign IPR increases the cost of technological inputs and reduces their supply, which limits the ability of local agents to learn by imitation. To the extent that enforcing IPR restricts this ability, developing countries cannot grow to become world-class innovators innovators
people who will try new things.
important figures in the farming or client community because they are the leaders in the introduction of new techniques and management systems. and competitors, because they need some technological base or skill set as a foundation (Allred and Park 2007).
If an emerging economy must pay to enforce foreign firms' IPR, which means higher prices for consumer goods consumer goods
Any tangible commodity purchased by households to satisfy their wants and needs. Consumer goods may be durable or nondurable. Durable goods (e.g., autos, furniture, and appliances) have a significant life span, often defined as three years or more, and and the transfer of patent royalties and license payments overseas, they receive little incentive. If the switch to innovative activity in a particular industry depends on an accumulated stock of knowledge, enforcement of foreign patents in China could delay the onset of innovative activity in that industry (Pasco 1998; LaCroix and Konan 2002). We therefore argue that beyond the often-quoted difference between the Confucianist ideal of li (moral) versus fa (the law), the difference between IPR legislation and enforcement makes it difficult for a foreign firm to protect its IPR in China. In turn, it seems questionable whether formal and complementary measures provide effective protections for a foreign firm's IPR.
Foreign firms also are unlikely to win patent lawsuits, because the institutions of the law in China are plagued by nepotism nep·o·tism
Favoritism shown or patronage granted to relatives, as in business.
[French népotisme, from Italian nepotismo, from nepote, nephew, from Latin and corruption, politicisation of courts and judges, discrimination against foreign business, ever-changing laws and local protectionism protectionism
Policy of protecting domestic industries against foreign competition by means of tariffs, subsidies, import quotas, or other handicaps placed on imports. (Cheng 1998; Feng 1997). The absence of a strong legal system particularly implies that patents are not enforceable, which invalidates their strategic use as bargaining chips.
On the contrary, applying for patents in China could facilitate local illegal imitation, because a patented product would be regarded as profitable and thus targeted for imitation in an environment in which social recognition of IPR is weak (You and Katayama 2005). It is likewise questionable whether complementary mechanisms can achieve effective IPR protection; they implicitly are built on the assumption of a strong appropriability system and a legal system that credibly threatens imitators and effectively sanctions those who infringe in·fringe
v. in·fringed, in·fring·ing, in·fring·es
1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent.
2. on treaties. This assumption clearly is rather unrealistic in the context of emerging economies, especially China.
First, moving quickly down the learning curve to stay ahead of imitators and exploiting lead time advantages likely works only when these advantages remain hidden from imitators, which is often not the case in China. Whole factories often are reproduced from illegally transmitted blueprints, such that the original firms do not know about the replicas until customers tell them. Products may be re-engineered, without any intervention by the legal system. Patents registered with the Chinese State Intellectual Property Office often provide imitators with a library of technological information. Moreover, foreign firms in China generally employ many local Chinese, many of whom think very entrepreneurially and are eager to start their own businesses to 'get rich quickly', even if doing so implies unscrupulously infringing on the foreign firms' IPR. Thus, business and production processes are prone to observation, with experience and tacit knowledge The concept of tacit knowing comes from scientist and philosopher Michael Polanyi. It is important to understand that he wrote about a process (hence tacit knowing) and not a form of . transmitted easily to potentially disloyal Chinese employees (Kambil et al. 2006).
Second, using complementary assets such as superior sales or manufacturing services seems promising only if a large quality gap exists between innovators and imitators. However, if knowledge about vital business processes spills over to Chinese imitators (whether legally or illegally), knowledge about how to offer complementary services also may spill over Verb 1. spill over - overflow with a certain feeling; "The children bubbled over with joy"; "My boss was bubbling over with anger"
bubble over, overflow
seethe, boil - be in an agitated emotional state; "The customer was seething with anger"
2. quickly. Over time, imitators likely can imitate im·i·tate
tr.v. im·i·tat·ed, im·i·tat·ing, im·i·tates
1. To use or follow as a model.
a. even complementary assets, to the extent that customers no longer perceive a quality gap, which invalidates the long-term use of complementary assets.
Third, using secrecy, enforced by legal means such as nondisclosure agreements, to protect IPR works only if the legal system can guarantee effective enforceability, which clearly is not the case in China. For the same reason, using strategic legal moves against imitators is unlikely to work.
Because this situation shall change only gradually, during China's progression towards a developed country, we believe it is paramount for managers to devise strategies that enable them to protect (or even enforce) IPR by themselves. The state is unlikely to show a strong interest in protection at the current stage of China's economic development. This presumption A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A Rule of Law.
If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical rests at the centre of our empirical exploration.
To explore how strategies are crafted, the close observation of managerial work often provides rich and enduring insights. In-depth studies are not only valid in themselves but also provide vital complements to large-scale studies typical of traditional strategy performance research (Johnson et al. 2003). Moreover, extant theory provides little guidance for identifying such strategies and approaches, so a qualitative, exploratory approach is appropriate. For such inductive inductive
1. eliciting a reaction within an organism.
a form of radiofrequency hyperthermia that selectively heats muscle, blood and proteinaceous tissue, sparing fat and air-containing tissues. approaches, a sample size of 4-10 cases has been suggested (Yin 1989; Eisenhardt 1989).
We travelled to China and collected data about 13 wholly owned subsidiaries of foreign firms, interviewing senior managers of these subsidiaries with in-depth, semi-structured interviews. Specifically, we inquired about how their original approaches to IPR protection had worked during their initial interactions with the Chinese societal context, what IPR infringements the firms had suffered, how managers had crafted de facto protection strategies for IPR protection (if they had), how these strategies worked and which elements they comprised. Appendix A details our approach to sampling and data collection, as well as our methods to ensure the reliability and validity of interview data. The interviews were not retrospective narratives of past actions but rather reflections on the current, ongoing actions of the firms' managers in China who, in their daily interactions with the Chinese societal context, crafted and continue to craft de facto protection strategies to protect their firms' IPR. Thus, inaccuracy due to hindsight--a potential validity threat when interviewees recall past events and subjectively modify them--is not an issue for our research. Descriptive data about the 13 cases appear in Table 1.
Detailed Analysis of the de Facto Protection Strategies
The interviews offer strong support for our presumption that managers have developed de facto protection strategies for their firms' IPR. Table 2 provides a comprehensive exposition of these strategies, which reveals that there is not only 'one' or a 'best' de facto protection strategy. Rather, a multifaceted spectrum of strategies exists, which are not mutually exclusive Adj. 1. mutually exclusive - unable to be both true at the same time
incompatible - not compatible; "incompatible personalities"; "incompatible colors" , and most firms rely on more than one.
We describe and analyse in detail the de facto protection strategies, which we named during our analysis of the interview data to reflect the main idea of the respective strategy. However, they were not explicitly labelled with these names by the interviewees.
'Technological Specialisation' (Cases A, D, H, J, L)
This strategy attempts to make imitation impossible by raising the degree of complexity of the product and/or the process technology, such that imitation would take a long time, be so costly as to match that of innovation or be simply impossible because of the lack of adequate knowledge needed for imitation. The interviewee for Case A provides a clear picture of this strategy:
In general, the government don't do a very good job at protection of IPR in general. However, in the line of chemicals, if the chemical process is relatively complicated, they cannot, you know, it's pretty difficult for them to try and copy it. With relatively difficult products, I guess there is a natural barrier [to imitation]. (...) The technology that we put into the market in China is technology that we feel can be somehow uniquely tied up only with our product capabilities, so it's a combination of product and service which cannot be easily replicated.
In the same vein, in Case D, the firm's competitive advantage is based on a combination of technical expertise and experience that cannot be easily copied. Case H uses specialised packaging technologies that are hard to replicate, and Case J represents an extreme example: Managers do not even attempt to protect their proprietary technology with local patents. Instead, the products are composed of hundreds of modularised components with a high degree of technological complexity. Even if a competitor succeeds in copying one component, it probably cannot replicate all the other components needed, manage the interface problems in combining them or possess the process knowledge to arrive at the final product. Thus, for Case J, IPR protection is 'a non-issue'. If these managers had applied for a local patent for every module, they would have provided every potential imitator with a catalogue of the technological specifications of every module and the interfaces by which they interact, because the full texts of patents are openly accessible (not only in China but in every patent system).
The firm in Case L uses a specialisation advantage: It sells its software applications only bundled with the specialised products of a large software supplier and reserves an encrypted en·crypt
tr.v. en·crypt·ed, en·crypt·ing, en·crypts
1. To put into code or cipher.
2. Computer Science software 'key', without which the product is useless. The customer receives this key only after documenting a purchase of the original software bundle. Because the firm receives its royalty payments directly from the large partner, its exposure to risks from lost royalty payments through software counterfeiting is very low. Moreover, the encrypted key contributes to the technological specialisation of the bundled product.
These findings correspond well with conceptual ideas from economic theory. For a wide range of complex, high-technology goods, such as chemicals, drugs, electronics and machinery, the costs of imitation average 65 percent of the costs of innovation; therefore, the costs of complexity can be interpreted as a tax on imitation (Glass and Saggi 2002).
Comparing this argument to our cases, we note that the firms' technological specialisation raises the imitator's cost, so that imitation, even if technically possible, becomes economically unviable. Our findings also corroborate To support or enhance the believability of a fact or assertion by the presentation of additional information that confirms the truthfulness of the item.
The testimony of a witness is corroborated if subsequent evidence, such as a coroner's report or the testimony of other the conceptual idea that the tacitness, complexity and ambiguity of resources create barriers to imitation; despite the easy duplicability of single components, experience-bound specialised knowledge about how different technologies relate provides a barrier that inhibits imitation (Reed and DeFillippi 1990; McGaughey et al. 2000). Thus, we can resolve the paradoxical finding that the firms in Cases A and J are developing very complex, high-tech products despite China's weak appropriability system.
'De Facto Secrecy' (Cases A, E, F, H, I, J)
We choose the label de facto secrecy to highlight the core of this protection strategy; however, this secrecy is not enforced by legal means, such as nondisclosure agreements. Managers who have crafted this strategy want to stop the outflow of sensitive IPR from the unauthorised appropriation of documents, blueprints and technical description by local employees. The basic idea is simple: Do not document any important information in writing. Although these firms transfer technology to China, they never disclose that technology in such a way that any imitator could benefit from it. Contrary to patents, in which text and formulae are openly accessible, de facto secrecy strategies try to keep complete knowledge secret or reserve a 'key' of tacit, specialised knowledge, without which the final product is not useable. Thus, the strategy is not just about keeping knowledge tacit but instead has several facets. One facet facet /fac·et/ (fas´it) a small plane surface on a hard body, as on a bone.
1. A small smooth area on a bone or other firm structure.
2. keeps the 'big picture' of the technology hidden, so that any potential damage is restricted to a module of the problem. In this vein, the managers of Case A state,
once you are in court against a local company, it's almost impossible to win, while the whole process takes up a lot of resources. Now if we are cooperating with local companies on an R&D project, we only give them a small part of the problem, and once they have solved this, we integrate all those parts into a whole solution. This should prevent technologies and innovations to leak out even when we're working together with local companies.
This de facto secrecy also extends to Case A's own subsidiaries in China: 'Our units in China do not have total access to information, especially not to key data and technology'.
Another facet of this strategy avoids disclosing the key components of product compounds, similar to Coca-Cola's famed protection of its recipe: The brand name and logo are protected trademarks, but the formula for the beverage remains solely in the heads of a few chemists. As the managers of Case A state,
whenever formulation is involved in the product, we tend to try to keep the formulation within a small group of people so we don't exchange information freely. If no formulation is required in the products, we actually make the process information as confidential as possible.
Similarly, the managers of Case E report a dual approach to protecting proprietary knowledge. First, they patent individual molecules. Second, they do not disclose the recipes for the complex compounds (generated by combining several dozen individual molecules) at all: 'With gas chromatography gas chromatography (GC)
Type of chromatography with a gas mixture as the mobile phase. In a packed column, the packing or solid support (held in a tube) serves as the stationary phase (vapour-phase chromatography, or VPC) or is coated with a liquid stationary phase and mass spectrometers, formulas can be analysed, but captive chemicals are a good protection against copies'. In the same manner, the manager of Case F notes: 'It makes sense to patent the molecules, but not the procedures of making the molecules'. Although Cases A, E and F all function in the chemical and pharmaceutical sectors, de facto secrecy is not limited to this industry; the competitive advantage in Case H largely derives from the firm's technological knowledge about packaging fine arts. Managers explicitly order that no written information about these packaging technologies may be distributed outside of Europe. Even local Chinese employees who work with the technology fly to Germany to learn how to use it, and the instruction relies on learning-on-the-job and practice only, without documentation, user manuals, or other written materials. Furthermore, the managers in Case I report that the only way they can protect their IPR from appropriation by state-owned enterprises is through the 'release of results only, no calculations or further explanations; patent applications should be as useless as possible for imitators'.
Our results are consistent with the finding that 'observability' is the only technology characteristic that significantly increases the hazard of imitation (Zander zan·der
n. pl. zander or zan·ders
A common European pikeperch (Stizostedion lucioperca) valued as a food fish.
[German, from Low German Sander 1991). De facto secrecy significantly reduces this hazard, because knowledge that is fragmented or never documented can be neither easily observed nor copied. Of course, this strategy also has one important limitation: Those who know about the secret knowledge need to be trustworthy.
'Internal Guanxi' (Cases C, G, I, K)
Guanxi refers to the Chinese way of establishing networks of relationships for social interactions. Significant threats to IPR protection may emerge from inside the firm, because Chinese employees conventionally do not show great loyalty to their employers. However, some managers either build trusting relationships with their employees or use the susceptibility susceptibility
the state of being susceptible. Refers usually to infectious disease but may be to physical factors such as wetting or to psychological factors such as harassment. of Chinese employees to guanxi issues to exert pressure on them. For example, in Case C, managers report that standard measures such as legal contracts can be supported by long-term education and training. In China, reminders about particular issue must be repeated systematically, or Chinese employees will think the issue is not 'on the agenda' anymore and will ignore it. To achieve successful IPR protection in the firm's internal sphere, frequent reminding and training is necessary: 'We train and educate employees to really understand why the protection of IP is so important and to respect that if IP is given to third parties, it will hurt the company in the first way, but that it also has a retroaction to every single employee'. Similarly, the managers of Case L claim that 'human resource management is key to the protection of IPR'. In Case J, the firm has introduced a system of monetary and non-monetary measures that attempt to make Chinese employees feel recognised as an important part of the firm's network, which causes them to 'feel integrated' and reduces the incentive to reveal the firm's technology to competitors.
Whereas these managers rely on employees' voluntary cooperation, the managers in Cases I and K depend on personal networks as a means to exert pressure. If they can identify an employee who has disclosed IPR without authorisation to competitors (as has happened several times), the managers force that employee to talk to the competitors in the company's name and issue a threat that the firm will retaliate. The employee becomes isolated by his or her own Chinese network, treated as a traitor TRAITOR, crimes. One guilty of treason.
2. The punishment of a traitor is death. , which leads to a breakdown of the personal network. This prospect is fearful for most Chinese, whose society is based on networks of personal relationships that are paramount in personal career paths (Luo 2000). Consequently, all employees of these two firms now knows what will happen if they disclose any IPR, which makes them very likely to abstain from abstain from
verb refrain from, avoid, decline, give up, stop, refuse, cease, do without, shun, renounce, eschew, leave off, keep from, forgo, withhold from, forbear, desist from, deny yourself, kick ( such behaviour.
The first facet of internal guanxi, building trust, confirms that a foreign firm's level of trust towards host-country employees relates positively to those employees' loyalty (Child and Mollering 2003). If employees perceive that the firm appreciates its relationship with them, they are more likely to display loyal behaviour. Thus, managers who employ the strategy of internal guanxi make use of China's dependence on social relationships to protect their firm's IPR. In contrast, the second facet relies on mistrust, which makes it a classic example of a principal-agent relationship Principal-agent relationship
Occurs when one person, an agent, acts on the behalf of another person, the principal. . Although personally threatening employees with the loss of their personal network may be questionable from a business ethics business ethics, the study and evaluation of decision making by businesses according to moral concepts and judgments. Ethical questions range from practical, narrowly defined issues, such as a company's obligation to be honest with its customers, to broader social perspective, it is, according to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the managers of Case K, effective in preventing the outflow of IPR. These findings also represent a first inquiry and some preliminary answers regarding another research gap (Weldon and Vanhonacker 1999), namely, how foreign firms in China can build loyalty among employees and thus prevent the loss of IPR.
'External Guanxi' (Cases B, F, H, K)
Whereas the preceding strategy focussed on the firm's internal sphere, this strategy aims at establishing good relationships with firm-external official bodies and institutions that formally may have little to do with IPR protection. Yet the de facto power of these bodies may make them a lot more effective than the legal system when it comes to IPR protection, so firms often are eager to establish strong relationships with them. Through these relationships, they might win the status of 'an old friend', such that these bodies treat the foreign firm as their protege pro·té·gé
One whose welfare, training, or career is promoted by an influential person.
[French, from past participle of protéger, to protect, from Old French, from Latin and actively pursue IPR infringements.
The managers of Case B invite Chinese legislators and local government representatives to regular meetings of the local 'legal commerce community' it sponsors to share information. Similarly, the managers in Case K offer free 'IP academies' and seminars at Chinese universities and maintain tight contacts with local government officials and customs officers. The firm's explicit goal is to become more known and 'networked' in the local government. Similarly, in Case F, the managers note:
In case an IP violation or counterfeits are detected, we alert the government. Ideally, the governmental agencies will take over the matter and handle the violation. It is in the interest of the firm as well as of society to collect the counterfeits and withdraw them from the market, as they can do harm to potential customers of the company. In general, Chinese authorities seem to invest much effort to tackle the problem of counterfeit products for the safety of customers.
However, this quick action is only possible because these managers have established relations with the respective governmental bodies over the years. The managers of Case H similarly have built relationships with high-ranking Chinese customs officers to fight indigenous firms that pretend to be sub-contractors and abuse the firm's corporate logo, brand names and trademarks. When the works of art that the firm in Case H conveys arrive at either airfreight air·freight
1. A system of transporting freight by air.
2. The amount charged for transporting freight by air.
air centres or harbours, customs officials can intercept indigenous firms directly and at little cost to the firm. Managers inform the customs officers several hours before an expected shipment arrives. This strategy is highly efficient, because the only alternative would be a lawsuit, whose outcome would be uncertain, while the shipment in China already would be lost to the fraudulent competitor. Because this firm needs to protect its IPR both locally (at the place of import) and quickly (as soon as the fraudulent competitor tries to take the shipment), its good relationships with the customs officers provide the most effective means to protect IPR.
However, the limitations of this strategy emerge clearly in the experiences noted in Case I. China's economic organisation is far from a free market system, and state-owned enterprises still play important roles. The main customers for the firm in Case I are such state-owned enterprises, though interactions require intermediaries that have a reputation for copying the firm's products and processes. The managers of Case I somewhat pessimistically pes·si·mism
1. A tendency to stress the negative or unfavorable or to take the gloomiest possible view: "We have seen too much defeatism, too much pessimism, too much of a negative approach" characterise themselves as 'powerless', because the government itself has an interest in technology transfer to China, so in this case, external guanxi would be useless.
These results corroborate the finding that the traditional and preferred means of dispute resolution in China consist of less confrontational processes such as consultation, mediation and arbitration. These processes tend to be far less complex than a judicial route, help repair relationships between the parties and, compared with litigation, are more flexible and less costly (Bosworth and Yang 2000). Again, China's prioritisation of social relationships determines the strategic behaviour of these firms.
Our findings also exemplify ex·em·pli·fy
tr.v. ex·em·pli·fied, ex·em·pli·fy·ing, ex·em·pli·fies
a. To illustrate by example: exemplify an argument.
b. the power of the administrative arm of China's legal system compared with its judicial arm. Chinese customs have the power to act against IPR infringements, without lengthy and uncertain court trials. The State Council's order of protection of intellectual property, issued in May 1994, authorises Chinese customs to protect IPR related to articles imported into and exported from China, including patents, trademarks and copyrights. A firm may record its rights with the relevant customs authorities (for a discussion of the role of Chinese customs, see Asia Law & Practice 1995), so customs becomes an especially powerful agent in the Chinese legal system. However, to build relations with customs makes sense only for firms that engage in trade, shipment and sales activities. Such relationships would not be of use, for example, if Chinese competitors or disloyal employees appropriated technological knowledge without authority.
'Educate the Customer'(Cases D, G, M)
This strategy seems somewhat counterintuitive coun·ter·in·tu·i·tive
Contrary to what intuition or common sense would indicate: "Scientists made clear what may at first seem counterintuitive, that the capacity to be pleasant toward a fellow creature is ... . Managers who deploy it do not aim to counteract counterfeits of their firms' products. For example, they do not sue counterfeiters in courts, because the costs of litigation would far exceed expected compensation payments. Nor do they attempt to stop the counterfeiting by any other means. The managers in Case D explain the rationale behind this seemingly irrational behaviour: 'the quality of similar or copied products is often minor, and customers normally do not buy the cheaper product more than once. (...) There is no real threat to our business as long as local companies offering similar products are small. However, concentration processes of local companies are very carefully monitored'. That is, the managers take advantage of a learning effect that influences Chinese customers of counterfeiters. Most counterfeits offer poor quality, so the customer learns over time that the more expensive but high-quality original product will better fulfill demand than the low-cost, low-quality counterfeit. In addition to relying on this learning effect, the managers in Case G offer additional benefits to customers who buy the original: 'we restrict our services exclusively to original machines. We also give quality guarantees to satisfy customers of original products. We do not actively search for copied products; usually the sales and service people get feedback from customers that counterfeits exist'.
An extreme example of this strategy occurs in Case M. These managers have developed a method to turn the counterfeit products into an 'advertisement for the original product'. The firm produces cleaning products for individual households and relies on a competitive advantage of design and good quality. Counterfeits appear on virtually every street comer com·er
1. One that arrives or comes: free food for all comers.
2. One showing promise of attaining success: a political comer.
Noun 1. , so pursuing them would be not only economically unviable but also practically impossible. The poor quality counterfeits usually break after months or even days. Annoyed customers, who know they bought a counterfeit, then approach the firm to purchase an original product. Thus, the counterfeits serve to distribute the brand name in Case M, while also advertising the better quality of its products.
A broader analysis of these findings reveals two additional aspects. First, this strategy seems viable as long as competitors are small and counterfeits are of bad quality. In this case, paradoxically, counterfeits contribute to the firm's reputation and its sales in the long term, because customers likely buy the counterfeit only once, recognise its poor quality and then turn to the original. However, if a counterfeiter were able to achieve similar quality and copy the design identically, this strategy would no longer be viable, because the difference between counterfeit and original would be imperceptible im·per·cep·ti·ble
1. Impossible or difficult to perceive by the mind or senses: an imperceptible drop in temperature.
2. to customers.
Second, this strategy works only as long as the marginal damage from each counterfeited product is minimal. However, if this marginal damage rapidly increases, even if the number of counterfeits remains low (e.g., customers buy counterfeited drugs and are harmed or even killed, as has happened in China), the company cannot rely on this strategy.
Elements Influencing de Facto Protection Strategies
The interviewed managers' assessments ranged from relaxed optimism ('IP is not an issue', Case J) to desperate pessimism pessimism, philosophical opinion or doctrine that evil predominates over good; the opposite of optimism. Systematic forms of pessimism may be found in philosophy and religion. ('we are essentially powerless against the outflow of our IPR', Case I), which suggests contingency factors may govern the suitability of each strategy for firms. On the basis of our results, we group these contingency factors into three constructs.
Product Structure and Know-how Intensity
The managers in Cases E and L, which have not suffered any IPR infringement since they entered China, reserve the 'key' to the understanding the functioning of their product. This 'key' can take the form of secret knowledge about the molecular structure and composition of the product (Case E) or a physical memory key, without which the product cannot be activated (Case L). Other case examples show that a product's technological specialisation provides an effective barrier to imitation. Relying on the secrecy of the processes and algorithms that will produce the results needed for their blueprints is the only protection in Case I. State-owned customers force this firm to reveal its technology, but the managers reveal only the results, not how they achieved these results. Thus, though IPR infringements occur continually, the damage from these infringements is limited.
The de facto strategy that managers deploy seems to depend on whether the firm's customers are individuals, private indigenous firms or state-owned enterprises. In a mass market of individual customers, counterfeits and IPR infringements exist but do not threaten the firm's competitive position, because they offer only poor quality, and such street-corner counterfeits, almost paradoxically, can promote the original firm's brand name and products. However, if customers are indigenous Chinese firms, the firm should adopt technological specialisation, because competing Chinese firms can deliver much better quality counterfeits than can small imitators. Interactions with state-owned firms seem to be the most dangerous settings for a firm's IPR, because the firm cannot rely on the effectiveness of informal relations with government decision makers for protection; these decision makers themselves are interested in transferring technology to China, even through IPR infringement.
Cultural Competence cultural competence Social medicine The ability to understand, appreciate, and interact with persons from cultures and/or belief systems other than one's own
Some managers have developed de facto protection strategies that take advantage of the importance of social relationships in China. When firms can construct internal networks of trusted relationships with employees and external networks with government officials and the administrative arm of the legal system (e.g., customs), they seem better able to protect their IPR. However, these strategies require considerable financial resources; managers who have crafted them engage in many lectures, seminars, road shows and informal meetings, which require significant time and resource investments. We suggest that larger, better known, reputed reputed adj. referring to what is accepted by general public belief, whether or not correct. firms should be more likely to employ these guanxi-related strategies.
The first goal of our study has been to develop a theoretical understanding of how a firm can protect its IPR in an environment in which enforcement of IPR is difficult or impossible.
We posit that the de facto strategies can be considered a 'third' group of appropriation mechanisms that complements the two known groups of formal and complementary measures. Thus, our findings extend existing literature on appropriation, which mostly analyses economies characterised by strong appropriability regimes. As our findings show, emerging economies characterised by weak appropriability regimes demand a different approach to safeguard appropriation.
We also can relate our findings to extant theory and judge the contributions our findings offer. We propose a simple matrix that analyses whether only patents, only complementary mechanisms, both or none are efficient for protecting a firm's IPR. This approach, as depicted in Fig. 1, indicates four sectors in which extant theory and our findings can be juxtaposed jux·ta·pose
tr.v. jux·ta·posed, jux·ta·pos·ing, jux·ta·pos·es
To place side by side, especially for comparison or contrast. .
According to this matrix, our findings cover a little addressed sector, namely, where none of the known measures of appropriation provide effective protection for firms' IPR. Moreover, the matrix implies two conclusions related to previous work on appropriability and IPR. First, our findings somewhat mitigate Teece's (1986) rather pessimistic pes·si·mism
1. A tendency to stress the negative or unfavorable or to take the gloomiest possible view: "We have seen too much defeatism, too much pessimism, too much of a negative approach" prediction that innovators in markets characterised by weak appropriability regimes will lose their competitive advantage to imitators. Rather, we find that managers of firms active in such contexts develop a new class of mechanisms--de facto protection strategies--that enable them to safeguard their firms' competitive advantage, despite a weak appropriability system. Second, we offer an applied example of Teece's (2000) proposal that competitive advantage is easier to protect when the firm can create and exploit more difficult-to-replicate, non-tradable assets.
The de facto protection strategies that these managers have crafted serve to achieve exactly this goal, in that most of them generate 'keys' or highly complex and fragmented knowledge that make imitation impossible. However, our findings also demonstrate that these difficult-to-replicate, non-tradable elements are necessarily 'assets'. As the guanxi strategies show, they can also take on the form of relationships. Thus, the rationale behind these strategies involves using firm-external elements, such as powerful decision-making bodies, for IPR protection, rather than relying on firm-internal assets alone.
The second goal of our investigation was to inform managers about which de facto strategies exist and how they can be applied. Managers can benefit from the strategies we outline and from a greater understanding of their rationale, benefits and risks in several ways. First, these strategies reveal that even when it is difficult or impossible to enforce IPR, a firm still can undertake measures to achieve effective IPR protection, without using the legal system. Thus, managers can gain insights into how to prevent the outflow of IPR, rather than merely reacting after infringements have occurred or counterfeits have appeared in the market.
[FIGURE 1 OMITTED]
Second, the de facto protection strategies are not mutually exclusive. Most firms we analyse use more than one, and managers should feel confident in combining measures according to the specific IPR they must protect. In particular, de facto protection strategies need not be 'active', in the sense of taking pre-emptive measures. For example, the educate the customer strategy is somewhat paradoxical, because it adopts passivity towards counterfeits that cannot be pre-empted beforehand, yet in the long term, the firm still wins out over counterfeiters.
Third, the high costs of holding a patent portfolio and pursuing lawsuits or litigation mean that managers who know how to protect their firms' IPR without resorting to these tactics may save their firms a lot of resources.
Keeping a patent in force over its lifetime can cost up to $250,000 in maintenance fees (Earl 2001). De facto protection strategies thus may save resources that otherwise could have been invested in building patent portfolios.
The third goal of our article has been to discuss how de facto strategies identified in the specific context of China might apply to other emerging economies. We therefore re-consider the dichotomy di·chot·o·my
n. pl. di·chot·o·mies
1. Division into two usually contradictory parts or opinions: "the dichotomy of the one and the many" Louis Auchincloss. between passing and enforcing laws discussed in Section 2. Although China offers an extreme example of an emerging economy in which IPR legislation and enforcement differ, it is not the only economy characterised by this distinction.
Many developing countries that are net importers of information goods and services In economics, economic output is divided into physical goods and intangible services. Consumption of goods and services is assumed to produce utility (unless the "good" is a "bad"). It is often used when referring to a Goods and Services Tax. have resisted Western advocacy of strong national IPR regimes and international harmonization har·mo·nize
v. har·mo·nized, har·mo·niz·ing, har·mo·niz·es
1. To bring or come into agreement or harmony. See Synonyms at agree.
2. Music To provide harmony for (a melody). (Gakunu 1989; de Almeida 1995; Sell 1998). For example, many Arab countries have had IPR laws and legislations for decades, but there is an evident lack of implementation and enforcement of these laws (Carroll 2001).
Furthermore, though cultural issues play a strong role in China, we do not believe they necessarily correlate with the phenomenon of 'copying'. Gadbaw and Richards (1988) study developing countries as culturally different as Taiwan, Korea, Singapore, Argentina, Brazil, Mexico, and India. They consistently find formal IPR legislation, yet the enforcement and protection of IPR are inadequate, and piracy remains a great problem.
The difference between passing laws and enforcing laws in emerging economies thus appears responsible for the IPR enforcement problems that foreign firms experience, not the specific cultural context of China. De facto protection strategies that are not directly related to cultural issues (i.e., technological specialisation, de facto secrecy and educate the customer) in principle should be applicable to other emerging economies.
However, as an extreme example, China is not easily comparable to other emerging economies. Before the 1970s, China dismissed law systems based on Roman right or British common law and instead adopted Confucian philosophy, which clearly influences the country's attitude towards IPR and cannot be changed in the short time span of several decades. Contextual communication and the importance of relationships, rather than formal law, exacerbate this problem. These extreme conditions differ considerably from emerging economies that have longer experienced Western influence, which suggests they may have different attitudes towards written laws laws deriving their force from express legislative enactment, as contradistinguished from unwritten, or common, law. See the Note under Law, and
See also: Write (e.g., India). China and other emerging economies may exhibit similar distinctions between IPR legislation and enforcement, but the country-specific reasons for this difference may vary greatly and influence the degree to which the de facto strategies we identify apply in other emerging economies. More cross-country empirical research Noun 1. empirical research - an empirical search for knowledge
inquiry, research, enquiry - a search for knowledge; "their pottery deserves more research than it has received" would be desirable to study the transferability of these de facto strategies to other emerging economies or compare different de facto strategies from different countries.
Finally, our results suffer some data limitations. Our study design ensures that our findings represent only an incomplete sample of possible de facto IPR protection strategies, rather than a complete portfolio of all existing strategies. It contains only firms that have achieved success with their de facto strategies, which means we provide no data about failed de facto strategies. Moreover, we rely on interview data from co-operating firms; other firms may have developed additional de facto strategies that we could not investigate. Our article, due to this limitation, suggests several possibilities for further research that undertakes some promising empirical explorations.
First, the topic of how multi-national firms might defend themselves against aggressive domestic firms is relatively new and unexplored (Jaffe et al. 2005; Wu and Pangarkar 2006). The de facto strategies we feature herein may represent defensive measures in such settings.
Consequently, our findings can provide a starting point Noun 1. starting point - earliest limiting point
terminus a quo
commencement, get-go, offset, outset, showtime, starting time, beginning, start, kickoff, first - the time at which something is supposed to begin; "they got an early start"; "she knew from the for exploring, for example, the interaction between the strategic moves of domestic firms (which strive for technology diffusion) and foreign firms (which strive to prevent this diffusion) in shaping the IPR situation of emerging economies. Second, the recent suggestion that a new marketing paradigm, fundamentally different from Western marketing practices, may be appropriate for emerging markets (Dawar and Chattopadhyay 2002) implies that a new IPR paradigm also may be needed. De facto protection strategies could be part of this 'emerging economy' IPR paradigm, an issue that has yet to be unexplored. Third, it would be interesting to study the performance implications of de facto protection strategies systematically, both among each other and as opposed to formal measures. (3) Our research confirms the existence of de facto protection strategies, but we do not investigate whether some strategies are more efficient than others (and in which circumstances and contingencies). Research might investigate, for example, whether in an emerging economy, firms that use de facto protection perform better (i.e., damages avoided, revenue from licenses) than firms that do not use such strategies. Fourth, more comparative case study work might elaborate on theoretical propositions about the de facto protection strategies. By comparing in-depth case studies of firms that use de facto strategies with those that do not, further research might causally pinpoint firm-level characteristics and theoretical mechanisms that determine why some firms achieve effective IPR protection in emerging economies whereas others do not.
DOI (Digital Object Identifier) A method of applying a persistent name to documents, publications and other resources on the Internet rather than using a URL, which can change over time. : 10.1007/s11575-009-0020-9
Appendix: Detailed Description of Methodology
Identification of Firms
The final sample of the 13 firms derives from two sources. First, in a quantitative survey to explore different aspects of firms' behaviour in China, we included items about IPR management in an attempt to corroborate our initial presumption that de facto IPR protection strategies exist. Replies to the four items were measured on Likert scales ranging from 1 ('do not agree at all') to 5 ('totally agree'). These four items were 'We have developed methods to protect our IPR regarding our product development process' (q1), 'We have developed methods to protect our IPR regarding our sensitive technology' (q2), 'We have developed measures that successfully protect our IPR in China' (q3) and 'Do you think that the enforceability of your IPR is a great problem for your business activities in China?' (q4).
This survey was implemented among 114 firms that ran fully owned and fully controlled R&D units in China, performing research, development or both, because we expected such firms to be vulnerable to uncontrolled outflows of IPR. Therefore, we estimated that such firms would be more likely to have developed de facto IPR protection strategies. We identified the firms from publicly available sources and databases. Of the 114 firms, 29 cooperated in the survey, but 2 observations had to be deleted because of missing data on the IPR-related questions, so 27 observations remained for analysis. Despite its quantitative nature, this survey was essentially exploratory, and its primary purpose was to acquire interview partners. We then contacted the 27 respondents by telephone and invited them to cooperate in personalised Adj. 1. personalised - made for or directed or adjusted to a particular individual; "personalized luggage"; "personalized advice"
individualised, individualized, personalized interviews about their IPR protection strategies in China. Eight of the 27 firms chose to cooperate. Second, we negotiated access to another five firms through personal contacts with the German Centre for Industry and Trade in Beijing (http://www.germancentre.org.cn). In combination, the two sources yielded the final sample of 13 firms. The headquarters of these 13 firms were located in Switzerland (5), Germany (5), the Netherlands (1), the United States (1) and Japan (1).
Our identification processes included wholly owned subsidiaries of foreign firms in China only, excluding questions and phenomena related to Sino-foreign joint ventures. Significant research on Sino-Western business relationships concentrates on joint venture problems and technology transfer between joint venture partners. However, since the Chinese government Ever since Republic of China founded in January 1st, 1912, China has had several regional and national governments. List
Interview Methods, Reliability and Validity
All interviews were conducted in China, in the firm's main subsidiary (i.e., regional Chinese headquarters), except for two firms whose senior managers responsible for IPR protection in China happened to be in Europe; these two interviews were scheduled in Switzerland.
The sensitivity of the topic prompted confidentiality concerns, so we were obliged to sign confidentiality agreements and ensure firm anonymity when reporting the results. We sought multiple respondents in all firms to prevent single-respondent bias and interviewed at least two senior managers in each subsidiary whose main responsibility was the protection of the firm's IPR, such as managing directors and patent lawyers. All managers were expatriates. We chose these respondents to ensure the interviewees had high-level, detailed knowledge of the subject matter. Furthermore, we used in-depth, semi-structured interviews to encourage interviewees to provide own ideas, which we might not have considered initially, and thus enhance the construct validity construct validity,
n the degree to which an experimentally-determined definition matches the theoretical definition. .
To ensure the reliability of the measurement, we consistently used the same interview guideline guideline Medtalk A series of recommendations by a body of experts in a particular discipline. See Cancer screening guidelines, Cardiac profile guidelines, Gatekeeper guidelines, Harvard guidelines, Transfusion guidelines. and standardised the number and order of questions across interviews. None of the firms allowed us to audiotape au·di·o·tape
1. A relatively narrow magnetic tape used to record sound for subsequent playback.
2. A tape recording of sound.
tr.v. these interviews, so we created transcripts during the interviews and checked them with interviewees to ensure the correct replication of their answers.
Interview language was German for Cases D, F, G, I and M (translated into English by the authors for this contribution) and English in Cases A, B, C, E, H, J, K and L. Transcripts were analysed using content analysis, designed to identify the de facto IPR protection strategies across individual case data. We present the results thematically, clustered according to these strategies, rather than separately for each firm. To increase the validity of the content analysis, we also triangulated the interview data with all secondary company data we could obtain.
Received: 20.06.2007 / Revised: 09.11.2008 / Accepted: 12.04.2009 / Published online: 16.01.2010 [c] Gabler-Verlag 2010
Allred, B., & Park, W. (2007). Patent rights and innovative activity: Evidence from national and firm-level data. Journal of International Business Studies JIBS, the Journal of International Business Studies, (ISSN: 0047-2506, eISSN: 1478-6990) is the official publication of the Academy of International Business (AIB) and is published by Palgrave Macmillan. , 38(6), 878-900.
Anand, B., & Galetovic A. (2004). How market smarts can protect property rights. Harvard Business Review Harvard Business Review is a general management magazine published since 1922 by Harvard Business School Publishing, owned by the Harvard Business School. A monthly research-based magazine written for business practitioners, it claims a high ranking business readership and , 82(12), 73-79.
Arundel, A., & Kabla, I. (1998). What percentage of innovations are patented? Empirical estimates for european firms. Research Policy, 27(2), 127-141.
Asia Law & Practice (1995). Intellectual property in China: Practical strategies. Hong Kong Hong Kong (hŏng kŏng), Mandarin Xianggang, special administrative region of China, formerly a British crown colony (2005 est. pop. 6,899,000), land area 422 sq mi (1,092 sq km), adjacent to Guangdong prov. : Asia Law and Practice Ltd.
Blind, K. et al. (2006). Motives to patent: Empirical evidence from Germany. Research Policy, 35(5), 655-672.
Bosworth, D., & Yang, D. (2000). Intellectual property law, technology flow and licensing opportunities in the people's republic of China. International Business Review, 9(4), 453-477.
Carroll, J. (2001). Intellectual property rights in the Middle East: A cultural perspective. Fordham Intellectual Property, Media and Entertainment Law Journal, 11(3), 555-560.
Cheng, J. (1998). China's copyright system: Rising to the spirit of TRIPS requires an internal focus and WTO See World Trade Organization. membership. Fordham International Law Journal Fordham International Law Journal is a law journal published by Fordham Law School. Its 30th volume will be published in 2007. According to a study made by Washington and Lee University, Fordham International Law Journal , 1941, 1965-1979.
Child, J., & Mollering, G. (2003). Contextual confidence and active trust development in the Chinese business environment. Organization Science, 14(1), 69-80.
Cohen, W. M. et al. (2002). R&D spillovers, patents and the incentives to innovate in·no·vate
v. in·no·vat·ed, in·no·vat·ing, in·no·vates
To begin or introduce (something new) for or as if for the first time.
To begin or introduce something new. in Japan and the US. Research Policy, 31(8-9), 1349-1367.
Cohen, W. M., Nelson, R. R., & Walsh, J. P. (2000). Protecting their intellectual assets: Appropriability conditions and why U.S. manufacturing firms patent (or not). NBER NBER National Bureau of Economic Research (Cambridge, MA)
NBER Nittany and Bald Eagle Railroad Company Working Paper, 7552.
Correa, C. (1995). Intellectual property rights and foreign direct investment. International Journal of Technology Management, 10(2-3), 173-199.
Dawar, N., & Chattopadhyay, A. (2002). Rethinking marketing programs for emerging markets. Long Range Planning To comply with Wikipedia's , the introduction of this article needs a complete rewrite. , 35(2), 457-474.
De Almeida, P. (1995). The political economy of intellectual property protection: Technological protectionism and transfer of revenue among nations. International Journal of Technology Management, 10(2-3), 214-229.
Earl, M. (2001). Knowledge management strategies: Toward a taxonomy taxonomy: see classification.
In biology, the classification of organisms into a hierarchy of groupings, from the general to the particular, that reflect evolutionary and usually morphological relationships: kingdom, phylum, class, order, . Journal of Management Information Systems The Journal of Management Information Systems (JMIS) is an academic journal that publishes original peer-reviewed research articles in the areas of Information Systems and Information Technology. , 18(1), 215-233.
Eisenhardt, K. (1989). Building theories from case study research. Academy of Management Review, 14(4), 532-550.
European Commission (2004). The 2004 TAXUD TAXUD Taxation and Customs Union Directorate-General (European Commission) Report on Counterfeits Seized by EU Customs. Brussels: European Commission.
Feng, P. (1997). Intellectual Property in China. Hong Kong: Sweet & Maxwell Asia.
Gadbaw, R., & Richards, T. (Eds.). (1988). Intellectual property rights: Global consensus, global conflict. Westport, Connecticut Westport is a coastal town in Fairfield County, Connecticut, in the United States. The 2004 population estimate was 26,644.
The town is as affluent as other expensive Fairfield County towns, boasting a per capita income of more than $70,000. : Westview Press.
Gakunu, P. (1989). Intellectual property: Perspectives of the developing world. Georgia Journal of International and Comparative Law, 19(2), 358-365.
Glass, A. J., & Saggi, K. (2002). Intellectual property rights and foreign direct investment. Journal of International Economics, 56(2), 387-410.
Gould, D., & Gruben, W. (1996). The role of intellectual property rights in economic growth. Journal of Development Economics, 48(2), 323-350.
Granstrand, O. (1999). The economics and management of intellectual property: Towards intellectual capitalism. Cheltenham: Edward Elgar Sir Edward William Elgar, 1st Baronet, OM, GCVO (2 June 1857 – 23 February 1934) was an English Romantic composer. Several of his first major orchestral works, including the Enigma Variations and the Pomp and Circumstance Marches, were greeted with acclaim. .
Hall, B. H., & Ziedonis, R. H. (2001). The patent paradox revisited: An empirical study of patenting in the U.S. semiconductor industry 1979-1995. RAND Journal of Economics, 32(1), 101-128.
Harabi, N. (1995). Appropriability of technical innovations: An empirical analysis. Research Policy, 24(6), 981-992.
Jaffe, A., & Lerner, J. (2004). Innovation and its discontents: How our broken patent system is endangering innovation and progress, and what to do about it. Princeton, N J: Princeton University Princeton University, at Princeton, N.J.; coeducational; chartered 1746, opened 1747, rechartered 1748, called the College of New Jersey until 1896. Schools and Research Facilities
Jaffe, E. D., Nebenzahl, I. D., & Schorr, I. (2005). Strategic options of home country firms faced with MNC MNC
See: Multinational corporation entry. Long Range Planning, 38(2), 183-195.
Johnson, G., Melin, L., & Whittington, R. (2003). Micro strategy and strategizing: Towards an activity-based view? Journal of Management Studies, 40(1), 3-22.
Kambil, A., Long, V. W., & Kwan, C. (2006). The seven disciplines for venturing in China. MIT Sloan Management Review MIT Sloan Management Review is a peer-reviewed academic journal covering all management disciplines, although its particular emphasis is on corporate strategy, leadership and management of technology and innovation. , 47(2), 85-89.
LaCroix, S., & Konan, D. (2002). Intellectual property rights in China: The changing political economy of Chinese-American interests. The World Economy, 25(6), 759-788.
Levin, R. C. et al. (1987). Appropriating the returns from industrial research and development. Brookings Papers on Economic Activity, 18(3), 783-820.
Luo, Y. (2000). Guanxi and Business. New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of : World Scientific.
Mansfield, E. (1986). Patents and innovation: An empirical study. Management Science, 32(2), 173-181.
Mansfield, E., Schwartz, M., & Wagner, S. (1981). Imitation costs and patents: An empirical study. Economic Journal, 91(364), 907-918.
Maskus, K., & Penubarti, M. (1995). How trade-related are intellectual property rights? Journal of International Economics, 39(3), 227-248.
Mazzoleni, R., & Nelson, R. R. (1998). Economic theories about the benefits and costs of patents. Journal of Economic Issues, 32(4), 1031-1052.
McGaughey, S. L., Liesch, P. W., & Poulson, D. (2000). An unconventional approach to intellectual property protection: The case of an Australian firm transferring shipbuilding technologies to China. Journal of World Business, 35(1), 1-20.
Mowery, D., & Oxley, J.(1995). Inward technology transfer and competitiveness: The role of national innovation systems. Cambridge Journal of Economics, 19(1), 67-93.
Park, W., & Ginarte, C.(1997). Intellectual property rights and economic growth. Contemporary Economic Issues, 15(3), 51-6l.
Park, W., & Lippoldt, D. (2005). International licensing and the strengthening of intellectual property rights in developing countries during the 1990s. OECD OECD: see Organization for Economic Cooperation and Development. Economic Studies, 40(1), 7-48.
Pasco, B. C. (1998). Technology transfer in a Ricardian mode: Chinese technological "Osmosis" in theory and practice. Studies in Comparative International Development, 32(4), 79-100.
Primo Braga, C. (1989). The economics of intellectual property rights and the GATT See General Agreement on Tariffs and Trade.
See General Agreement on Tariffs and Trade (GATT). : A view from the South. Vanderbilt Journal of Transnational Law All the law—national, international, or mixed—that applies to all persons, businesses, and governments that perform or have influence across state lines.
Transnational law regulates actions or events that transcend national frontiers. , 22(2), 243-264.
Primo Braga, C. (Ed.). (1990). Strengthening protection for intellectual property in developing countries: A survey of the literature. World Bank Discussion Paper 112. Washington, DC: World Bank.
Reed, R., & DeFillippi, R. J. (1990). Causal ambiguity, barriers to imitation, and sustainable competitive advantage. Academy of Management Review, 15(1), 88-103.
Sattler, H. (2003). Appropriability of product innovations: An empirical analysis for Germany. International Journal of Technology Management, 26(5-6), 502-516.
Sell, S. (1998). Power and ideas: North-South politics of intellectual property and antitrust Antitrust
The antitrust laws apply to virtually all industries and to every level of business, including manufacturing, transportation, distribution, and marketing. They prohibit a variety of practices that restrain trade. . Albany: State University of New York Press The State University of New York Press (or SUNY Press), founded in 1966, is a university press that is part of State University of New York system. External link
Smith, P. (2001). How do foreign patent rights affect US exports, affiliate sales, and licenses? Journal of International Economics, 55(2), 411-439.
Teece, D. J. (2002). Managing intellectual capital: Organizational, strategic, and policy dimensions. Oxford: Oxford University Press.
Teece, D. J. (1986). Profiting from technological innovation: Implications for integration, collaboration, licensing and public policy. Research Policy, 15(6), 285-305.
Teece, D. J. (2000). Strategies for managing knowledge assets: The role of firm structure and industrial context. Long Range Planning, 33(1), 35-54.
The Swiss-Chinese Survey (2006). Behind the China kaleidoscope kaleidoscope (kəlī`dəskōp), optical instrument that uses mirrors to produce changing symmetrical patterns. Invented by the Scottish physicist Sir David Brewster in 1816, the device is usually a hand-held tube, a few inches to as much : A guide to China entry and operations. Shanghai: China Ltd.
United Nations Conference on Trade and Development (2005). World Investment Report 2005: Transnational Corporations and the Internationalization The support for monetary values, time and date for countries around the world. It also embraces the use of native characters and symbols in the different alphabets. See localization, i18n, Unicode and IDN.
internationalization - internationalisation of R&D. New York and Geneva Geneva, canton and city, Switzerland
Geneva (jənē`və), Fr. Genève, canton (1990 pop. 373,019), 109 sq mi (282 sq km), SW Switzerland, surrounding the southwest tip of the Lake of Geneva. : United Nations.
United States Trade Representative (2005). Special 301 Report. Washington, DC: United States Trade Representative Office.
Watal, J. (2000). Intellectual property rights in the WTO and developing countries. The Hague: Kluwer Law International.
Weldon, E., & Vanhonacker, W. (1999). Operating a foreign-invested enterprise in China: Challenges for managers and management researchers. Journal of World Business, 34(1), 94-107.
WIPO WIPO World Intellectual Property Organization
WIPO World Intellectual Piracy Organization (satire website)
WIPO Write in Poll Option
WIPO Wing Information Protection Office (USAF) (World Intellectual Property Organization) (2005). WIPO Intellectual Property Handbook: Policy, Law and Use, WIPO Publication No. 489 (E). Geneva: World Intellectual Property Organization.
Wu, J., & Pangarkar, N. (2006). Rising to the global challenge: Strategies for firms in emerging markets. Long Range Planning, 39(3), 295-313.
Yang, D., Sonmez, M., & Bosworth, D. (2004). Intellectual property abuses: How should multinationals respond? Long Range Planning, 37(5), 459-475.
Yin, R. (1989). Case study research: Design and methods. Beverly Hills Beverly Hills, city (1990 pop. 31,971), Los Angeles co., S Calif., completely surrounded by the city of Los Angeles; inc. 1914. The largely residential city is home to many motion-picture and television personalities. , CA: Sage.
You, K., & Katayama, S. (2005). Intellectual property rights protection and imitation: An empirical examination of Japanese FDI in China. Pacific Economic Review, 10(4), 591-604.
Zander, U. (1991). Exploiting a technological edge: Voluntary and involuntary dissemination dissemination Medtalk The spread of a pernicious process–eg, CA, acute infection Oncology Metastasis, see there of technology. Stockholm: Stockholm School of Economics The Stockholm School of Economics or Handelshögskolan i Stockholm is a business school and private university in Stockholm, Sweden. It was founded in 1909 to improve business education in Sweden. Controlled by a private trust, it also receives government support. .
Ass. Prof. M. M. Keupp ([mail]) * PhD Cand. A. Beckenbauer * Prof. O. Gassmann
Department of Business Administration, Institute of Technology Management
University of St. Gallen The University of St. Gallen (in German: Universität St. Gallen) is both a research university, a vocational university and a business school based in St. Gallen, Switzerland. , St. Gallen , Switzerland St. Gallen (
(1) We use the term intellectual property rights (IPR) in accordance with the definition of the World Intellectual Property Organisation (WIPO 2005): a construct that covers both copyrights and industrial property. Copyrights result from literary, artistic, and scientific work; industrial property rights result from inventions, industrial designs, trademarks, service marks, commercial names and designations and protect against unfair competition.
(2) We thank an anonymous reviewer re·view·er
One who reviews, especially one who writes critical reviews, as for a newspaper or magazine.
a person who writes reviews of books, films, etc.
Noun 1. for drawing our attention to this paradox.
(3) We thank an anonymous reviewer for this suggestion.
Table 1: Descriptive Data Case Business segment/ Elements of the value ID industry of the firm in chain covered by Chinese China operations A Industrial chemistry, Production, sales, R&D plastics B Power technology, Production, sales, R&D, automation Technology services C IT hardware and software Software development, sales, R&D D Nonwovens Production, sales E Fragrance and flavour Production industry F Pharmaceuticals Production, R&D, sales G Textile machines Production, sales H Conveyance, shipping and Logistics, packaging, packaging of fine arts shipping I Industrial engineering, Production, distribution construction of plants and services J Electronics industry Production, development, R&D, distribution, services K Electronics industry Production, development, R&D, distribution, services L IT, software for Sales optimisation of industrial processes M Sanitary technology Sales, production, localisation modifications Table 2: Exposition on the de Facto Protection Strategies De facto Cases Rationale and strategy functionality Technological A, D, H, J, L Keep products specialisation complex, modularise components. De facto A, E, F, H, Keep valuable secrecy I, J knowledge restricted to very few expats, do not document knowledge. Internal guanxi C, G, I, K Make use of the importance of personal networks for the Chinese. Integrate them in the firm's 'family'. External guanxi B, F, H, K Convince Chinese decision-makers that your IPR should be protected because you are 'an old friend'. Team up with Chinese officials in administration and in the customs. Educate the D, G, M Turn counterfeits customer into your primary marketing device: Spread your logo and brand name while demonstrating the poor quality of imitators' counterfeits. De facto Suitable for... Benefits strategy Technological Complex, Imitators' costs specialisation knowledge-intersive rise beyond the cost goods. of buying the original. De facto Products and Almost perfect secrecy processes that protection unless require highly tacit imitator can access knowledge. critical knowledge. Internal guanxi Firms with a high Fighting in-house proportion and disloyalty at low importance of cost. Good chance indigenous staff. for long-tern commitment of local staff. External guanxi Firms willing to Very robust means invest in building for protection. and grooming long- China's term relationships administrative and with officials. party officials and the customs have powerful instruments to protect the firm's IPR if it is 'an old friend'. Educate the Firms that produce Free advertisement, customer for mass markets increase of your and firms whose brand's reputation, customers are Chinese are private individuals. 'educated' that to buy counterfeits doesn't amortise in the long run. De facto Risks Contingencies and strategy limitations Technological Fragmentation of Suitable to fight specialisation knowledge is key to imitation, but not protection. innovations by domestic competitors. De facto Staff entrusted with Need for reliable secrecy critical knowledge staff. Limited need to be possibility to store absolutely reliable. and transfer knowledge. Internal guanxi May not always be Excellent under ethical. If standing of China's performed wrongly, societal context staff may behave needed. disloyally. External guanxi Chinese officials Requires good may be ousted by citizenship, rivals so that the considerable relationship is cultural competence lost. Some officials and patience to be may pursue hidden awarded the status agendas. of 'an old friend'. Educate the Works only as long Strategy is of customer as there is a large little use if quality gap between counterfeiting is original and not the primary counter-feited problem. products.