China wants to move away from imitation to innovation country. Therefore China’s State Intellectual Property Organization (SIPO) issued the Promotion Plan for the Implementation of the National Intellectual Property Strategy in 2012. Before I give an analysis of this laudable plan my preliminary thought is this:
Although there are not many China’s State-owned Enterprises, they have assembled huge assets, see here. This means that people in charge of these enterprises have vested interests. And a country that is full of vested interests, and that considers critical thought as a potential danger to social stability and harmony is not a climate conducive to innovation. Because innovation gives birth to disruptive technologies (Schumpeter’s gale: creative destruction). Without innovation, there is only the intellectual property of foreign rights holders to protect and enforce. Besides, innovation is needed for sustainable economic growth which can harness social stability and harmony. From a historical point of view (the greatest inventions came from China) and a statistical point of view applying a Bell curve to a population of 1.3 billion people China must have the most and least innovative people in the world. If there are not enough inventions to be harvested, the ground needs fertilizer: a culture for experimenting and critical thought can do the trick.
1. To focus from IP quantity to IP quality and boost IP value.
China has the most valid patents of all countries in the world. In the end of 2011 China had 2,740,000 valid patents. United States had 2,114,000 valid invention patents, Japan had 1,542,000 valid invention patents, see here. It is great that China realises that quality is more important than quantity. Therefore the construction of “an appraisal and assessment system” of the number of invention patents per 10,000 people is less than useful.
2. To apply IP in China’s burgeoning strategic industries.
To improve the “green channel for patent examination”, and to accelerate the processing of patent applications if the invention has an environmental benefit, is very useful. Everybody who lives in China can tell you that the country is heading towards environmental disaster. Every step taken to avert this environmental armageddon should be welcomed.
3. Promote the application of IP.
How to get inventions from commercialise intellectual property rights, from laboratory to the market, is the biggest challenge of IP. China will promulgate the Several Opinions on Further Intensifying the Protection of Legal Rights and Interests of Inventor or Creator of Service Inventions and Promoting IP Application and Implementation. Under this mission we can expect China to announce many Chinese technical standards, and push hard for them to be accepted as the industry standards. China will draft the Regulations on Service Invention.
4. Intensify IP protection.
Since China became a World Trade Organization member, it complies to the Trade-related Aspects on Intellectual Property Rights (TRIPs) on paper, but not in spirit. The level of enforcement is still relatively low.
Even though on paper the trademark, copyright and patent law look TRIPs-compliant, China went to make them even more effective and propose to revise all three laws.
Trademark law is now in the process of being revised.
About a revision of the Copyright law there will be an emphasis on:
– right coverage and classification;
– right content;
– right ownership;
– fair use;
– registration and confirmation;
– protection of broadcasting organizations;
– standard amount of infringement remedies and damage compensation
For the revision of the Patent Law, improvements of articles about the following subjects can be expected:
– administrative enforcement;
– remedies for infringement;
– design patent
China announced that we can expect the following from the People’s Army:
– Revision of the Regulation on National Defense Patent;
– Promulgation and implementation of the Measures on Management of People’s Liberation Army on Armament IP;
– Measures for the Registration of Integrated Circuit Layout Design for Military Use;
– Measures for the Registration of Military Software Copyright.
All of the following measures are extrapolations of trends that already started but that have not reached a sufficient level, yet.
– Strengthen the establishment of a permanent mechanism for combating IPR infringement;
– increase the cost of IPR infringement;
– reduce the cost of IPR protection and enforcement;
– promote the transfer of IP cases from administrative authorities to judicial authorities;
– carry out special campaigns, including the consolidation of the Operation Strike of the Sword, Special Campaign of Sea Escort, and the 8th Special Campaign on internet infringement and piracy (IP Dragon has pointed several times that, despite their impressive names, he is no advocate of special campaigns since they do not provide any sustainable solution, which is illustrated by the fact that you need to do a special operation eight times!, and the announcement of campaigns is also not conducive to its efficacy);
– combat crimes of IPR infringement in key fields and regions.
The following judicial interpretations and opinions by the Supreme People’s Court will be promulgated:
Interpretation Concerning Several Issues in the Application of Law During Adjudication of Civil Disputes of Infringing On-line Information Dissemination;
Rules Concerning Several Issues in the Application of Law During Adjudication of Monopoly-Related Civil Disputes;
Improvements are announced:
– the registration system for IPR protection at customs;
– Geographical Indication system;
– Well-known marks.
An interesting idea is:
“Promote the Trademark License System and the trademark archives announcement system nationwide, strive to extend the systems to large department stores in the 31 provincial capitals (including municipalities directly under the Central Government and prefectures where the provincial capital is located), promote market operators to set up trademark archives, examine and verify trademarks of market goods before their entry to the market which literally bring market regulation beyond the entry of market goods.”
Beijing is hosting the Diplomatic Conference on the Treaty on Protection of Audiovisual Performances of WIPO, which is a sign that China wants to promote the adoption of the Treaty on the Rights of Performers in Audiovisual Performances and the Treaty on the Rights of Broadcasting Organizations.
5. Develop IP in Fields with Comparative Advantages.
China announces to develop an IP system for genetic resources and traditional knowledge, and wants to further develop Geographical Indications, using the bilateral negotiations on GI agreements and Doha Round of WTO negotiations on the protection for GI and genetic resources as fora.
China wants to do a pilot census of Traditional Chinese Medicine resources in 10 provinces (including autonomous regions, municipalities directly under the Central Government), start a database on Traditional Knowledge about Traditional Chinese Medicine, exploring the feasibility of a legal protection list of Traditional Knowledge in Traditional Chinese Medicine.
Promote the legislation of the Regulations on the Copyright Protection of Folklore.
China will participate in the Intergovernmental Committee Meeting of WIPO on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
6. Enhance IP Management Capacity
China wants to improve IP management in governments, industries, enterprises, colleges and universities, scientific institutes and service agencies.
7. Develop an IP Service Industry.
China wants to promote the implementation of the Guiding Opinions on Accelerating the Development of Hi-tech Service Industry.
There is an interesting sentence referring to so called turtles: Chinese students that have studied overseas and have returned to China to support them to set up start-ups of hi-tech enterprises with IP through indigenous innovation. The question rises then how indigenous is this indigenous innovation when the knowledge is acquired overseas. If you want as a country indigenous innovation you might better consider to reform your university system to cultivate a climate of experimenting and critical thought, two things the academic curriculum of Chinese universities is lacking.
8. Foster IP culture.
China wants to groom IP talent, and has the High-level Talents Introduction Plan, the Hundred and Thousands of IP Talents Project. However, without a real innovative culture, what is there to protect, beside other countries’ IP.
On top of this, everything you want to achieve by coordinating the actions of 28 institutes is quite a challenge. The following institutes are involved:
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Publicity Department of CCCPC |
Publicity Department of the CPC Central Committee |
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MFA |
Ministry of Foreign Affairs |
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NDRC |
National Development and Reform Commission |
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MOE |
Ministry of Education |
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MOST |
Ministry of Science and Technology |
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MIIT |
Ministry of Industry and Information Technology |
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MPS |
Ministry of Public Security |
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MOJ |
Ministry of Justice |
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MOF |
Ministry of Finance |
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MHRSS |
Ministry of Human Resources and Social Security |
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MEP |
Ministry of Environmental Protection |
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MOA |
Ministry of Agriculture |
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MOFCOM |
Ministry of Commerce |
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MOC |
Ministry of Culture |
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MOH |
Ministry of Health |
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SASAC |
State-owned Assets Supervision and Administration Commission |
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GAC |
General Administration of Customs |
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SAIC |
State Administration of Industry and Commerce |
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AQSIQ |
General Administration of Quality Supervision, Inspection and Quarantine |
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SARFT |
State Administration of Radio, Film and Television |
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NCAC |
National Copyright Administration of China |
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SFA |
State Forestry Administration |
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SIPO |
State Intellectual Property Office |
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SCLAO |
Legislative Affairs Office of the State Council |
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CAS |
Chinese Academy of Science |
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SPC |
Supreme People’s Court |
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SPP |
Supreme People’s Procuratorate |
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PLA GAD |
General Armament Department of PLA |