Brookings Program Highlights China’s Legal and IP Reforms

tao

A program on January 28, 2015 at Brookings in DC, demonstrated how China indeed is “crossing the rule of law river by feeling the IP stones.” Two Chinese judges – Supreme Peoples Court Vice President Tao Kaiyuan and SPC No. Four Civil Tribunal Chief Judge Luo Dongchuan, gave an upbeat overview of China’s quickening pace of judicial legal reform which was deeply informed by their experience on IP matters. The presentation of Judge Tao is available on line.

Judge Tao is well known to many for her stewardship of the Guangdong IP Office, where she served as Director General from 2008-2013. In her current role at the SPC, she oversees the IP Division (No. 3 Civil Division).  Judge Luo now handles foreign-related commercial and maritime cases. He has been outspoken recently about improving foreign-related civil litigation. He is perhaps best known for his many years of work on the IP Division of the SPC, where I had numerous discussions with him on a range of IP issues, including patent litigation and the role of specialized IP courts.

Judges Tao and Luo, in public and in private, were both quick to point out their close relationship with the IP community. As slides 7- 8 point out, numerous reforms are underway and indeed, many of the reforms that are being contemplated nationwide are now being tried out at the specialized IP courts.

The Judges themselves appear to be part of a modest rule of law “charm offensive”, with a prior stop over in Houston.

(Photo above: Federal Circuit Bar Association President Jim Brookshire with Madame Tao Kaiyuan.)

Revised Patent Administrative Enforcement Rules – Is SIPO Building an Administrative System so the Patent Law Amendments Will Come?

On January 27, 2015 SIPO released a revised draft of its Patent Administrative Enforcement rules for public comment.  The released draft includes a line by line comparison with the last version (Feb. 1, 2011) as well as an explanation of the changes. The due date for comments is March 15, 2015. The purpose of these amendments is to address such matters as reducing the time frame for patent administrative litigation, improving procedures, and improving enforcement in the on-line environment.

Separately SIPO Commissioner Shen revealed at a SIPO Party Meeting on January 23, that in addition to rapidly increasing patent filings (2.361 million in total in 2014), , the total number of patent administration enforcement cases was 24,479, increasing 50.9% from the prior year.  This is a nearly 16 fold increase since 2009.  Past efforts like these have typically brought surges in “patent passing off” cases, which is most like false marking.   SIPO’s administrative enforcement in recent years has also shown irregular month to month cycles that are likely tied to enforcement campaigns (see my chart below).Patentadminenf

I estimate that this high level of enforcement activity is likely due to a combination of four factors, including an NPC Standing Committee to supervise administrative patent enforcement in eight provinces and regions that was launched in 2014. a campaign from last year to address counterfeit and substandard products (打击侵犯知识产权和制售假冒伪劣商品), a renewed commitment to amend the patent law, which Commissioner Shen noted in his talk at the meeting to local IP Offices on January 19, and SIPO’s own desire to ensure that its administrative enforcement system is not sidelined by recent efforts to improve judicial adjudication of high technology IP cases, including the establishment o f the specialized IP courts.   Indeed, the explanation advises that this draft reflects the commitments to improving rule of law in China.

The different roles of China’s administrative and judicial systems in patent enforcement has been previously discussed by me in this blog,  I quoted David Kappos at that time as recommending that “China should consider concrete ways of promoting and improving the civil judicial enforcement system by providing more resources, promoting the independence of the judiciary, providing for more training of judges, particularly on technical patent matters, and in general, improvements in the civil legal environment”  Many of these efforts are now underway in the judicial system.   Maybe the administrative system is trying to catch up?

Photo below, from Beijing airport – a foreign company advertising its patented product in 2015.

patentedmakeup.jpg

Updated January 17, 2016.

Of Roses, Country Roads and Eileen Zhang

rose

Every once in a while, perhaps for surprise effect, I remind a Chinese friend or colleague that an ancient or modern Chinese cultural icon may in fact have been a foreigner or under foreign influence.    Perhaps the most renowned traditional cultural figure that might claim foreign roots is Li Po (Li Bai  李白 ),   one of China’s greatest poets, who was likely borne in Central Asia.  Another, more recent cultural figure was Eileen Chang, who became a US citizen in 1960 and was among the most accomplished of modern Chinese novelists.   Ang Lee directed Eileen Chang’s “Lust, Caution,” in 2007 and went on to win  another Golden Lion at the Venice Film Festival for this movie.  His first Golden Lion was for Brokeback Mountain.

Another type of cultural dissemination occurs when songs cross borders and take on a life of their own.

As we near Valentine’s Day, it might be worth reflecting on Frankie Lane’s song “Rose, Rose I Love You”, which was drawn from the popular 1940’s Chinese song  of the same name: 玫瑰玫瑰我愛你, sung by the 1940’s pop star  Yao Li 姚莉  (Miss Hue Lee).  There are many clips of these songs available on line.   You can look for the 1940 Chinese original Columbia recording, or the 1951 Frankie Lane Columbia recording.   The lyrics are predictably somewhat different, and I personally find Miss Hue Lee’s lilting and vulnerable voice more endearing that Frankie Lane’s reinterpretation of   the song to describe a foreign protagonist abandoning a Malayan Chinese.   Although Chinese music has been deeply influenced by foreign music in recent decades in fact, as one Chinese commentator notes, one of the earliest examples of a hit in both the US and China was this song.   In fact, Frankie Lane’s version  apparently helped propel Hue Lee’s Chinese original  to a number 3 position in the United States on Billboard’s top pop songs for a period of time.

Sometimes songs also take on a life of their own for both their cultural and political resonance.  John Denver’s Country Roads certainly has that legacy, as it was played by the late singer for Deng Xiaoping and Jimmy Carter at a celebration to honor the normalization of relations.   Cory Doctorow explains the importance of the song at some length in a blog posting “China’s love affair with ‘Take Me Home Country Roads’”.   I suspect that almost anybody who travels to China often enough will have heard the song many times.

Wikipedia tracks several versions of “Rose” over the decades beginning in its first appearance in a pre-revolutionary Chinese film.  John Denver’s song seems to be most popular in China in its English version, although the song is known in Chinese as: 《乡村路带我回家>.    As of January 26, 2015, there were seventy four hits for Country Roads on Baidu. It would be interesting to know if the rightsholders of “Country Roads” collect anything in royalties from Chinese sources, including ring tones, and if the rightsholders of “Rose” were able to collect from  the use of their compositions by Frankie Lane, Petula Clark and other singers back in the 1950’s, at a very difficult time in US-China relations and in China’s IP development.   I hope some of the artists benefitted.

By the way, Yao Li enjoys a particularly active life in music.  Her last recording was made in 2011, at nearly 90 years old, and she also enjoyed a career for a time in Hong Kong with EMI Music.