Jail House Inventors and Fake Jail Infringements

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Here’s another  IPR oddity: the jail house innovator.  Both China and the United States have them.

The Chinese government, like many other governments, has had policies for reducing criminal sentences for a variety of factors (age, health, behavior, restitution etc.).  Uniquely, however, it has also had an explicit policy encouraging innovation in the prisons.  The most recent version of that rule is the April 10 Rule of the Supreme People’s Court on Procedures for Review of Commutation and Parole Cases (最高人民法院关于减刑、假释案件审理程序的规定).  Article 5, states:

执行机关以罪犯有立功表现或重大立功表现为由提出减刑的,应当审查立功或重大立功表现是否属实。涉及发明创造、技术革新或者其他贡献的,应当审查该成果是否系罪犯在执行期间独立完成,并经有关主管机关确认

My translation: Agencies implementing sentences should consider the accuracy of whether the offender had rendered meritorious service or major meritorious grounds for commutation.   When such a request involves invention creations, technology innovations or other contributions, agencies shall examine whether these results were independently achieved while serving sentences, and if the relevant department has recognized that accomplishment.

This compassionate policy raises a host of interesting theoretical questions.  For example, are there  “service inventions” in the prison system of China? Will the convict keep the revenues from the invention?  Will local government provide subsidies to convicts?  Do IP agencies work with prisons in evaluating patents and innovations?  Are prisons themselves recognized as institutions promoting innovation?    If the prisoner had been convicted of an IP-related offense, such as counterfeiting a patent, is he or she really to be trusted?  Moreover, can the prisoner or his assignee bring a suit on his independent patent? 

Actually, prisons, inventors and patents have had an awkward relationship in both the United States and China.  In the United States, David Marshall “Carbine” Williams, served time for making moonshine and was held responsible for killing a federal officer.  He was helped in prison by a compassionate prison warden who enabled him to come up with some of this greatest ideas while in jail.  He later helped the US war effort after he left jail through his work on the M-1 rifle.  HIs life story was later made into a film, with Jimmy Stewart as the film’s star.  

Inventors have also served time in both our countries.  Jin Fuey Moy, the first Chinese inventor in the United States, served time a US jail, presumably while his patents were still in force.   In China, Wang Lijun, who handled public security under convicted Chongqing former government Bo Xilai,  held 150 patents.  He was sentenced to 15 years in prison in 2012 on corruption charges.    

Apart from this compassionate policy, China’s IP enforcement agencies had also, in the early stages of their development, an awkward understanding of their own responsibilities to stop IP infringement in their house.  In the past, for example, reeducation through labor camps were charged with the manufacture of counterfeit goods for export.  In those early days, China’s Supreme People’s Procuratorate had actually pirated a series of books on IP by the late scholar Zheng Chengsi,   As I have blogged about elsewhere, I believe the question is not really whether government agencies have infringed but how they prevent infringement, and how they behave after they discover the infringement (https://chinaipr.com/2013/10/14/software-piracy-by-sipo-a-tempest-in-the-tomato-garden/). 

Today, illegal counterfeiting operations may actually resemble prisons as they seek to hide their underground operations from law enforcement and engage in unsafe work practices.   How bad are the working conditions? In one particularly bizarre development, some ten years ago, a fake “prison” was in fact discovered in Sichuan that was making counterfeit cigarettes.  http://www.iol.co.za/news/world/chinese-police-snuff-out-fake-prison-1.121231.  One can only imagine what it was like to work there…

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