US Firms: China No Longer An 'Afterthought'

US patent lawyers say they are increasingly advising clients on China strategies as corporations seek to gain leverage in enforcement, licensing, and supply chain managemen

Practitioners say that US companies are increasingly treating China as a core part of their global patent strategy, rather than a secondary jurisdiction.

Senior law firm leaders at three firms say that geopolitics and shifting market dynamics are driving US businesses to prioritise China.

Businesses with ties to China or that want to target the Chinese market should consider securing protection in the country, according to Amita Haylock, partner at Mayer Brown.

Those that fail to do so leave themselves vulnerable to exploitation by foreign competitors, she adds.

Janet Xiao, patent attorney at Morrison Foerster, says that in the past, US companies were hesitant to file patent applications in China due to enforcement concerns.

However, changes to China's patent law, including the establishment of specialised IP courts, increased statutory damages, and the introduction of punitive damages for wilful infringement, have strengthened the enforcement landscape.

Haylock adds that these shifts have prompted a change in approach to filing for patents in China.

"Historically, many companies treated China as an afterthought in their global patent strategy – filing in the US or elsewhere first and only considering China as a secondary jurisdiction, if at all. That approach is now changing rapidly."

Practitioners say filing for patents in China allows companies to enforce IP rights where products are manufactured and stop potentially infringing goods at the border.

Additionally, the rising pressures of managing global supply chains, competition, and geopolitical tensions also make it an attractive option.

Proactive filing

As US companies evaluate their China options, practitioners say that those companies are relying on legal counsel for guidance.

Tina Dorr, partner at Barnes & Thornburg, says this reliance extends beyond patent filing and prosecution to helping clients design broader business strategies.

"Patent counsel are often working in partnership with clients to design portfolios that create strategic leverage across the supply chain, including enforcement options such as administrative actions and customs recordation, as well as supporting licensing strategies, supplier negotiations, and broader competitive positioning," says Dorr

Xiao at Morrison Foerster says working with clients proactively on portfolio strategy is essential to setting them up for success, particularly in mitigating freedom-to-operate risks.

She adds that her firm is leveraging its multilingual attorneys and working with local Chinese firms to coordinate patent strategies.

"Our team includes highly experienced bilingual patent attorneys and agents who are well versed in both US and Chinese patent law, which uniquely positions us to bridge strategic considerations across jurisdictions effectively."

She adds: "We work closely with reputable local firms to make sure that we obtain high-quality, enforceable Chinese patents that support our clients' broader global business strategy."

Geopolitics

The practitioners note that much of this shift in filing strategy has been driven by competition.

The US and China continue to be global competitors in innovation, particularly in technology, driving both countries to seek early IP protection in their respective jurisdictions.

Haylock at Mayer Brown says China is becoming a critical end market, and companies re-examining supply chains have prompted US clients to consider the Chinese market more seriously.

Dorr from Barnes & Thornburg adds that tariff uncertainty has also impacted how clients think about China strategically.

"Companies are paying much closer attention to supply chain risk and where critical technologies are manufactured, particularly in light of tariffs, geopolitical tensions, and broader supply chain disruptions."

She adds: "As a result, protecting technology in key manufacturing jurisdictions like China has become more central to patent strategy, particularly as tariffs and trade restrictions can quickly shift where products are produced or sourced."

Beyond litigation

Shifts in tariffs, competition, and market dynamics play a significant role in why clients are considering early patent protection in China. Blocking infringing products at the border, deterring competitors, and driving licensing agreements have pushed firms and clients to weigh China more heavily when designing a global IP strategy.

Law firms can expect an influx of China-focussed work as enforcement risk and supply chain shifts continue to impact corporations' strategies.

Firms that work across jurisdictions and that can use their China expertise could be set to benefit.

Originally published by Managing IP