SIPO has just made its proposed draft of revisions to the patent law (fourth amendment?) available on line. With these sets of amendments, China is now in various stages of revising all major IP statutes: the Copyright Law is with NCA in its second draft, the Trademark Law is with the State Council Legislative Affairs Office (SCLAO), and the Antiunfair Competition Law is also in some stage of review by either SAIC or the SCLAO.
Based on news articles to date, this draft is intended to address patent enforcement challenges. See, e.g., He Jing’s commentary. If the focus is on administrative enforcement and the challenges revealed in administrative enforcement from the recent IP campaign, some may wonder whether, as one practitioner noted to me, SIPO should look into substantive examination for utility model patents and designs, rather than administrative enforcement of patents. Administrative enforcement of patents has historically been problematic, due to the technical complexity of patents. Many administrative enforcement cases involve design and utility model patents. moreover, foreign companies are not, historically, significant users of this system. However, we need to review the draft and data thoroughly. We heard that these revisions may be on the SCLAO calendar for 2013.
At the same time, SIPO is reportedly seeking comments on its Regulations on the Remuneration for Inventor-Employee’s Inventions. These were hotly debated at the time of that the third amendment to the patent law was under consideration, especially by foreign invested enterprises who would newly fall within the clear scope of its requirements. A public draft is not yet available for comment, although the Quality Brands Protection Committee appears to be involved in commenting.
This is not all the legislation that is happening involving IP on the national level. For example, the SAIC is still involved in drafting its IP abuse rules. Moreover, the recently concluded Beijing Treaty on Audiovisual Performances will likely require changes in China’s copyright law, as is already reflected in the second NCA draft. In addition I expect that Chinese negotiators would expect the NPC to consider early passage of the treaty that was concluded in Beijing.
There is little doubt that the NPC and SCLAO will be busy this year and next on a range of IP-related legislative matters, and there will be many interesting developments to look out for.