The Back Story on the Third Plenum IPR Language

Former SIPO Commissioner Tian Lipu recently revealed the “legislative history” of the language in the Third Plenum regarding IP, as reflected by former Chief Judge Jiang Zhipei in his chinaiprlaw.cn blog (http://www.chinaiprlaw.cn/file/2014020731400.html).

The original language being discussed was that China would “Implement the National IP Strategy and Strengthen IP Protection.”(“实施知识产权战略,加强知识产权保护”).  This was, indeed the language circulated in August 2013, and did not reflect much change from prior years.  A proposed change in language at that time was “Deepen the National IP Strategy,  Strengthen the Practical Protection of IP.” (“深入实施知识产权战略,切实加强知识产权保护”).

Ultimately, the final language was “Strengthen the Utilization and Protection of IP, Investigate Establishing a Specialized IP Court” (“加 强知识产权的运用和保护,探索建立知识产权法院”).   In the words of former Commissioner Tian, the placement of “utilization” as the first priority was a new development. The language regarding specialized IP courts was inspired by the National IP Strategy (2008) which had originally taken up this issue, and promoted it to reduce local influence and improve national coordination.  However this new language on the courts, according to Tian, supports a next stage of concrete implementation of this proposal.

After the adoption of this proposal, Tian and SIPO were delighted with this language, as they had been concerned that the recent establishment of “too many” High and Intermediate IP tribunals would complicate matters and make it difficult to establish an IP court.  Now, according to Tian, development of a specialized IP court is a development direction for China as well as one that is increasingly recognized by other developing countries.

Commissioner Tian Lipu has made enormous contributions to the development of China’s IP and patent systems and has earned the respect and friendship of many IP officials throughout the globe. It now seems that even as he was preparing to retire, one of his visions for improvements to the IPR system is further down the road to success.

3 thoughts on “The Back Story on the Third Plenum IPR Language

  1. Pete Suttmeier says:

    Mark,

    I’ve always been a little unclear as to what “utilization” actually meant. Here you link it to the development of the specialized court, but I had thought it referred more to the appropriation of value from IP.

    Pete

    • chinaipr2 says:

      I think utilization usually means commercialization – which could mean licensing, capitalization as an investment contribution, or actual manufacturing or delivery of a good or service using the IP. I think Tian is right that “utilization” has been little used in these high level statements in the past – and considering the high level of patent abandonment (decisions to not maintain the patent), utilization is a significant problem in China. Utilization, to me anyway, does not mean litigation. Others may differ.

  2. Dan Rosen says:

    In the The Back Story on the Third Plenum IPR Language you review what the IP community had hoped to see reflected in the Third Plenum, versus what they got. One thing that I see in the 60 Decisions which was certainly additional to the language on IP in the 12th Five Year Plan at least was the extensive reference to enshrining market mechanisms as the driver of innovation. Viz, from Decision 13:

    Market-based technological innovation mechanisms are to be encouraged; the market’s guiding role in technological research and development orientation, choice of paths, pricing of factors, and allocation of all innovation factors is to be given free rein; applied technology research and development institutes are to be market-oriented and transformed into business enterprises; the market is to play a key part in determining innovation programs and allocation of funds, and assessing results and administrative dominance is to be abolished; and the technology market is to be developed so that technology-transfer transactions and financing mechanisms and venture capital investment for small and medium-sized science and technology firms can function. (see http://www.cbbc.org/who_we_are/news/131112_third_plenum_decision, Decision 13, p. 10)

    It seems to me that these emphases on the market with regard to innovation, as with the emphases on the market in many other regards, was novel. Is that not the case? Were all these references to the market already employed in the innovation doctrine prior to the Third Plenum?

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