Open Sesame for Open Access

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Following on the heels of efforts of the United States in early 2013 to increase access to federally funded research,  the Chinese Academy of Sciences and the Natural Science Foundation of China have announced on May 15 that from now on all research produced by scientists at CAS and all papers produced by NSFC grants must be archived in open access databases within one year of publication.   The development has been widely reported in the trade press, such as Chemistry World and Nature.  These magazines also report that the Ministry of Science and Technology may take a similar approach with respect to their funded research. 

The notice of the Natural  Science Foundation of China noted that  “An important tool in promoting development is publicly funded scientific research, which is the knowledge creation of society that supports innovation.  The publication of funded research papers is a knowledge resource of the whole of society.  When the whole of society can obtain this information, the dissemination of knowledge and its utilization will be promoted….”

China has taken a “green” path to open access by providing for open access after one year.  Open access in general has its supporters and detractors.  While the benefit of wide spread sharing of information would appear obvious, detractors cite the role of publishers in maintaining publication quality, editing and indexing.  Access is facilitated by the availability of differential pricing in many parts of the world.

The White House statement was quite different by requiring policies from research funding agencies and noting as a consideration that publishing also has its role: “The Administration also recognizes that publishers provide valuable services, including the coordination of peer review, that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available. It is also important that Federal policy not adversely affect opportunities for researchers who are not funded by the Federal Government to disseminate any analysis or results of their research.”

Delayed open access, immediate open access, or relying on a market for exclusive rights for writers and publishers – which works better? Will China’s policies ultimately provide enough support for quality publications, which may depend on the services of professional publishers?  Or will the market ultimately find roles for all types of publication practices?

(photo is of the author with Alexander Graham Bell as a wax figure)

 

SIPO’s Data Shows Continued High Demand for IP Information in China

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SIPO recently published its 2013 data on hits on Chinese government IP websites.   Overall, there were 2,974,407,259 hits on Chinese government IP system portal websites in 2013.  Total numbers of distinct on IP addresses were 30,066,575.

The three biggest foreign countries in terms of visitors were the US, France and Canada.  In terms of origin of page views, China was number one: 934,297,096.  The US was number two with 136,552,861.  France trailed at 6,120,926.  To put that in perspective, US page views were 14.6 percent of the total – which is rather high.

Country Page Views
1 China 923,297,096
2 United States 136,552,861
3 France 6,120,926
4 Canada 4,175,340
5 U.K. 3,676,532
6 Germany 3,436,612
7 South Korea 2,804,540
8 Japan 2,428,610
9 Brazil 1,892,332
10 Spain 1,297,910

There were 554,028,775 hits to the Chinese language patent search engine. Amongst English language hits, news ranked first (381,612), and law and policy was second (164,226).

The biggest domestic source of domestic page views were Beijing and Guangdong (approximately 286 million and 90 million, respectively).

There was a minor spike in visits in April (IP Day/Week – April 26, I presume),  another spike in July and August,  but the  big spike was in December with  an especially large growth in IP addresses towards year end, as the 12 month chart below of visitors indicates.

hits

The year end spike parallels the increase in patent filings at year end (https://chinaipr.com/2013/02/16/autumnal-hook-2012-update/.  )My guess is that seasonality in utilization of patent search engines would more closely approximate trends in patent filings, while overall utilization of government IP websites may tend to track IP campaigns and policy initiatives.

The ratio of distinct addresses to page views is about 100 hits per IP address (approximately 3 billion hits/30 million IP addresses).  We are an information-oriented profession!

I noted in an earlier blog “The Chinese IP Hits Parade”  that foreigners learn about Chinese IP from Chinese government websites, particularly when Chinese data is compared with US and European sources of information on the Chinese IP environment.    By comparison, total hits on my bog last year were 30,000, a number that pales in comparison to the millions of page views from foreign IP addresses on Chinese government websites, or in terms on Chinese government English language websites, where the differences narrowed.

While the data suggests continued growth in information services on IP, it would be useful if SIPO provided the tools to make better year on year comparisons or listed all of the Chinese government IP websites it is tracking.  Other problems: the numbers of page views is about one third lower than hits in SIPO’s report, which is hard to fathom, since each hit is necessarily a page view.  In addition, there appears to be a large spike in US utilization of SIPO websites compared to 2012 data in 2013, which is also hard to understand.

Source: http://www.sipo.gov.cn/zscqgz/2014/201405/t20140508_946303.html (关于全国知识产权系统政府门户网站2013年统计情况的通报) (Report Concerning the Statistical Situation of The Chinese Government National Network of  IP Portals in 2013).

 

 

Call for Papers on Internet Governance

From Rogier Creemers and the Chinalaw listserve run by Don Clarke comes the attached call for papers on Internet governance in China for China Perspectives.  China Perspectives is an anonymously peer-reviewed academic journal written in French and English.   The Call for Papers (http://wp.me/p1ZQFA-BW) notes that “Chinese positions carry increasing weight on such global issues as net neutrality, copyright, privacy, or freedom of speech, to mention but a few” and that this journal thus “plans to publish a special feature on Internet governance in China, which will cover these aspects from a multidisciplinary perspective, including law, political science, political economy, political sociology, communication, or international relations.”

NDRC, IP and China’s Plans for 2014

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The NDRC released to the public last week its Notice of Its Opinion on Key Tasks on Deepening Economic Reform in 2014 (国务院批转发展改革委关于2014年深化经济体制改革重点任务意见的通知) (dated April 30, 2014, released May 20, 2014) (http://www.gov.cn/zhengce/content/2014-05/20/content_8818.htm).   Although not focused on IP, this Notice does encompass several IP and economic reform issues, and is perhaps more notable for how it says things rather than what it says.  Here are some highlights:

Article 2 calls for changes in government functions.  It is the only article that expressly references IP.  In this article, the NDRC calls for “severely punished swindling, counterfeiting, intellectual property infringement, intentional pollution of the environment, and behavior that is contrary to the principles of fair market competition; establishing a scientific sampling system,  a system for tracing responsibility, an ‘anomalous’ businesses directory and blacklist system, with an emphasis  on controlling problem companies and illegal business  operators.”   The article suggests a continued important role for the State Council Leading Group in fighting IP infringement and substandard products.

Article 4 deals with deepening state owned enterprise, science and other reforms. This article  calls for accelerating China’s scientific and technological innovation to  support and promote industrial structure optimization.  It also calls on China to strengthen the “dominant position of enterprises in technological innovation, encourage enterprises to set up  R & D institutions , lead collaborative manufacturing study and research alliances, increase development funds to support SME’s technological innovation efforts,  give full play to the guiding role of the market for scientific and technological innovation, and to improve and promote the industrialization of scientific and technological achievements…”

In addition this article notes that China will “building an innovative platform to promote the development of strategic emerging industries.”   The following industries area also targeted for further development:  “culture, creativity and design services ,… e-commerce , … the Internet of Things and the Internet .”

Article 6 calls for opening to promote reform and promoting “indigenous brands”.

What is the role of IP in this important document?  The word “innovation” (chuangxin) appears 15 times in a variety of contexts, the word “intellectual property”, only once.  By contrast, rule of law (fazhi) appears 3 times, and environmental protection (huanbao, huanjingbaohu) four times. As a goal oriented document, this may suggest that IP is but one vehicle for China to become more innovative, and that IP is a limited part of economic planning for NDRC. 

Direct word counts can, however, also be misleading indicators.  An agency may also wish to bury its important role in a particular area, in order to show broader consensus.  For example, while NDRC has direct enforcement authority under the antimonopoly law, there is no direct mentioning of the AML in this document,  despite NDRC having taken a more active role in AML matters over the past year.   There are however  general references to the market order and the report discusses the creation of joint research alliances, which are potentially exempt from coverage under China’s Antimonopoly Law (Article 15). 

Overall, the document suggests continued, active intervention / guidance in the market by the Chinese government for economic planning purposes, and that IP is one part of that important project.

(Above is what the document looks like as a world cloud, using Google translate  (via http://www.worldle.net).  The  short translations in this blog however do not necessarily correspond to those in Google translate.)

 

InterDigital Settles With NDRC

According to a May 22 press release (http://online.wsj.com/article/PR-CO-20140522-903952.html) , InterDigital has settled antimonopoly charges with the National Development and Reform Commission of China.

InterDigital’s commitments regarding licensing of its patent portfolio for wireless mobile standards to Chinese manufacturers of cellular terminal units (“Chinese Manufacturers”) are as follows:

1. Whenever InterDigital engages with a Chinese Manufacturer to license InterDigital’s patent portfolio for 2G, 3G and 4G wireless mobile standards, InterDigital will offer such Chinese Manufacturer the option of taking a worldwide portfolio license of only its standards-essential wireless patents, and comply with F/RAND principles when negotiating and entering into such licensing agreements with Chinese Manufacturers.

2. As part of its licensing offer, InterDigital will not require that a Chinese Manufacturer agree to a royalty-free, reciprocal cross-license of such Chinese Manufacturer’s similarly categorized standards-essential wireless patents.

3. Prior to commencing any action against a Chinese Manufacturer in which InterDigital may seek exclusionary or injunctive relief for the infringement of any of its wireless standards-essential patents, InterDigital will offer such Chinese Manufacturer the option to enter into expedited binding arbitration under fair and reasonable procedures to resolve the royalty rate and other terms of a worldwide license under InterDigital’s wireless standards-essential patents. If the Chinese Manufacturer accepts InterDigital’s binding arbitration offer or otherwise enters into an agreement with InterDigital on a binding arbitration mechanism, InterDigital will, in accordance with the terms of the arbitration agreement and patent license agreement, refrain from seeking exclusionary or injunctive relief against such company.

A quick read of these commitments suggests that item 1 is a re-commitment by InterDigital to F/RAND licensing of its SEP’s,  Item 2 reflects Chinese antipathy to mandatory grantbacks of technology in a technology transfer agreement, including imposing non-essential requirements on the technology transfer agreement under the Contract Law and related Judicial Interpretation and  Item 3 reflects the interest in many parties in seeking mandatory arbitration to resolve increasingly complex F/RAND SEP disputes, including questions concerning the availability of injunctive relief in light of F/RAND licensing commitments. 

My personal observation: the news release does not indicate under what circumstances a Chinese licensee would have lost the right to an arbitration by reason of a lack of good faith in negotiating licensing terms and thereby does little to incentivize licensors entering into negotiations at an early stage after a standard has been determined.  However, it does appear to offer the possibility of expedited arbitration for licensor and licensee in lieu of the licensor’s seeking injunctive relief, thereby potentially mitigating losses of a licensor due to unreasonable delay.

Judge Rader To Step Down As Chief Judge

At the Federal Circuit’s May 23 Global Dialogue program today, held in conjunction with the US Chamber, Chief Judge Rader announced that he will be stepping down as Chief Judge. According to press reports, he will stay on the court as a judge.

Judge Rader has accomplished much in China during these several years and I expect he will remain active in China.

Position in Commerce Department General Counsel’s Office

The Office of the General Counsel, US Commerce Department is  seeking to hire a junior lawyer (GS-12) with one to three years of experience, ideally in international trade.  The position likely includes some intellectual property and some China-related work.    The position is only open for one week.   See: https://www.usajobs.gov/GetJob/ViewDetails/369659700.

The Commerce Department scored “number 2” as the best large agency to work for in the federal government, after the National Aeronautics and Space Administration (http://bestplacestowork.org/BPTW/rankings/overall/large).