The vote for WIPO Director General will be made in early March. The Chinese candidate, Madame Wang Binying, is known to many in the foreign IP community in China, IP diplomats, and others. She is currently a Deputy Director General at WIPO and is consider a front-runner for the position. Ms. Wang’s candidacy has elicited considerable opposition from many in the United States, much of it ill-informed, but some of it raising legitimate concerns. The Chinese media has responded in kind and accused the US of “bullying.”
Over a month ago, a bipartisan group of four U.S. senators had written to President Trump to request that the United States oppose Ms. Wang’s candidacy. Wang’s name was put forth by China’s Ministry of Foreign Affairs in November. These senators have noted that “ Given China’s persistent violations of intellectual property protections, including through trade secret theft, corporate espionage, and forced transfer of technology, the United States and its allies must stand firmly against such a move.”
Other commentators have joined in the criticism, including Daniel Runde at the Center for Strategic and International Studies, who recently co-authored an article, “Why the United States Should Care about the WIPO Election,” and James Pooley, a former U.S. Deputy Director General at WIPO, is quoted in Foreign Policy as asking with regard to Ms. Wang, “[w]hy would you put the fox in charge of the [IP] hen house?” I was also misquoted in the South China Morning Post as opposing Wang Binying on similar grounds. For me, Ms. Wang’s candidacy is clouded – but not precluded – by the long shadow cast by Francis Gurry on WIPO’s relationship with China, not by any necessary risk of “IP theft”, which is a term I abjure. I will discuss that issue later in this blog.
One concern is easily dismissed: Ms. Wang is eminently technically qualified to lead WIPO, as even some of her harshest critics note. DDG Wang has excellent credentials. She has an LLM from the institution, where I teach (UC Berkeley, (1985-86), and also obtained a certificate in commercial law from my own alma mater, Columbia Law School. She also worked at the former State Administration for Industry and Commerce. She has had a long-term tenure in senior positions at WIPO. She even spent some time training at USPTO early in her career, upon the recommendation of a U.S. Foreign Commercial Service Officer, Clark T. Randt, III, who later served as U.S. Ambassador to China and who has known her for years. In fact, my introduction to Ms. Wang occurred through Ambassador Randt when I served as IP Attaché to the U.S. Embassy in Beijing (2004-2008).
Another matter that should be cleared up is that she was somehow appointed by the Communist Party, as suggested by one journal. The recommendation for Ms. Wang comes, appropriately, from China’s Ministry of Foreign Affairs. It is true, however, as the Washington Post has reported, that Ms. Wang’s appointment is part of a larger effort by China to assume leadership roles in a number of UN organizations and that most of these officials are likely Party members. Moreover, U.S. diplomacy in this area is also hampered, as the Post has noted, “by the administration’s public contempt for the multilateralism and its damaged relationships with allies.”
As in every critique of things Chinese, there are also some ardent U.S. defenders. Some U.S. patent lawyers have suggested to me that the U.S. doesn’t have a basis to criticize Wang or China because China has been strengthening China’s patent system at the same time as the U.S. has been weakening its own IP regime. While I am supportive of this observation, I believe it is irrelevant to Ms. Wang’s candidacy. Different countries necessarily have different strengths and weaknesses in their IP regimes. The WIPO position does not mandate international conformity with the nationality of its DG, even if that might be welcomed in some circumstances. More importantly, US patent practitioners should instead be primarily concerned whether WIPO will be handling international (PCT) patent applications in an expeditious and professional manner. A second concern may be whether WIPO will embrace intellectual property norms consistent with U.S. policy in its role as the administrator of 26 separate treaties on intellectual property and as an organizer of conferences and training programs on intellectual property issues.
In contrast to the above, the serious opposition to Ms. Wang generally breaks down into three related areas: (a) Ms. Wang is a China-promoted official at a time of heightened U.S. concern over China’s support for “IP Theft”; (b) a China DG may be inclined to mishandle PCT applications or mismanage WIPO utilizing the extensive discretion afforded to her; and (c) WIPO’s policies in China are in need of a change. I discuss these below:
The United States government has long conflated a range of issues into “IP theft”, including cybersecurity, trade secret infringement, forced technology transfer, and restrictive market access policies. Many of these policy issues are not within the domain of WIPO and therefore have a limited role in the discussion around Wang Binying. Some of them are the subject of an ongoing WTO dispute involving forced technology transfer. WIPO is primarily concerned with the more mundane tasks of filing international applications for patents, trademarks and designs, arbitrating IP disputes, and training on IP issues, and negotiation of new IP treaties. Although IP enforcement and trade secrets are part of WIPO’s mandate, they occupy a very small policy-oriented role.
The reason there is a WTO case dealing with IP theft and none at WIPO is simply that WIPO doesn’t have a broad IP dispute mandate. WIPO, unlike the WTO, is relatively toothless. It cannot impose compensatory sanctions. There is also no WIPO-administered treaty devoted to trade secret matters. The U.S., which has been aggressively advocating for better international protection of trade secrets for several years, has successfully raised standards for trade secret protections outside of the WIPO treaty process, through free trade agreements and bilateral agreements, including the recent Phase 1 Agreement with China. The major international agreement with the most teeth is the TRIPS Agreement (Article 39), which is administered by the WTO. It obligates “Members” to “protect undisclosed information.” This affirmative obligation might, for example, support a WTO complaint against state-sponsored economic espionage or cyber-intrusions, among other acts. Concerns about Ms. Wang aggressively pushing back on the U.S. IP theft policy agenda therefor seem badly misplaced.
A more significant concern than WIPO’s policy function is WIPO management. The lion’s share of WIPO’s budget is derived from international IP filings, with Patent Cooperation Treaty Fees accounting for 75% of these receipts, followed by trademark fees, contributions, and design fees. However, WIPO does not appear to have the same level of user accountability that other IP offices have. For this reason, patent practitioners who actively used the WIPO system should be most concerned about how that system will be managed by a new DG, then with WIPO’s approach to “IP theft.”
PCT Applications and the Extensive Discretion Afforded by the WIPO DG
The record of the incumbent Director General, Francis Gurry, may serve as a useful guide to how much risk Wang Binying might present to US interests in WIPO’s administration of international patent applications through the Patent Cooperation Treaty. James Pooley, a former WIPO Deputy Director General in charge of the Patent Cooperation Treaty (PCT) process, testified before the House Foreign Relations Committee in 2016, where he outlined these risks:
“The agency, in my opinion, is run by a single person who is not accountable for his behavior. He is able to rule as he does only with the tacit cooperation of member countries who are supposed to act as WIPO’s board of directors. And he is ultimately protected by an anachronistic shield of diplomatic immunity…
During my tenure I witnessed how a lack of any effective oversight frequently led to reckless decisions, often reflecting a disregard for the legitimate interests of the U.S. There are many examples I could provide, but here I will focus on three: his gift of high-end computer equipment to North Korea, his secret agreements with Russia and China to open satellite WIPO offices, and his relentless retaliation against whistleblowers who dared to come forward with the truth.”
Mr. Pooley’s concerns about the integrity of WIPO internal controls should be treated seriously, as the PCT system, which Mr. Pooley managed, contains a wealth of technical information that is confidential. China or another malevolent actor, through a compliant DG, might access the secure WIPO computer systems for inappropriate purposes. The PCT, which is administered by WIPO, allows inventors to file one application and then wait 30 months before choosing the countries where they need a patent. It is particularly vulnerable during the time frame before the patent is published (18 months after the application date_ During this period before publication, the application is a secret and should not be disclosed to the public and is therefore vulnerable to misappropriation.
The risk of misappropriation of patented information by China under a Wang Binying leadership is hard to quantify; however, it remains incumbent upon WIPO to insure the integrity of its systems in order for the PCT system to remain viable. These risks have historically been especially acute with respect to China. China has a weak record of addressing bad faith use of its patent and trademark systems. There is no concept of “fraud before the patent office,” or a sanctionable “duty of candor.” China’s past record of legalizing the use of overseas patent materials to support domestic patent applications provides scant comfort. As late as 2008, China permitted the filing of applications on patents based on disclosures by others in overseas markets, provided they had not been published anywhere in the world, or made known or marketed in China. Design patents merely required that the patented design is not marketed in China (2000 Patent Law, Arts. 22, 23). This loophole led to a phenomenon known as “patent hijacking” and would typically occur at an overseas trade show where a new product was displayed before its public disclosure or marketing to China. A Chinese visitor might photograph a new product at an overseas trade show, email a photograph to his home office, and the home office would then rush to the Chinese patent office to file a design patent application, lawfully claiming it as his or her invention. The Chinese patent system provided incentives to “steal” others’ proprietary information. In addition to this form of legalized technology misappropriation, the U.S. government has accused Chinese agencies of covertly compelling the transfer of technology from foreign investors, an issue that has recently been addressed by the enactment of China’s Foreign Investment Law.
China also permits the anonymous filing of patent applications, which can further obscure whether an applicant obtained technical information from an illegitimate source (Examination Guidelines 4.1.2). In fact, one U.S. professor, Percival Zhang, was identified as possibly usurping such information and filing a patent application in China anonymously. Mr. Zhang’s activities are discussed in a federal civil court case brought by the alleged actual inventor. He was later convicted in a federal court, apparently on other charges.
The civil court case also involved a PCT application, where a Chinese entity was accused of misappropriating confidential information in advance and applying for a patent in its own name. As the court noted:
“In September 2016, … Bonumose filed an international patent application regarding tagatose, listing China as a covered country. The application remained confidential until April 2017. But Bonumose learned soon thereafter that the Tianjin Institute had filed its own patent application in November 2016. Tianjin’s application listed several inventors, two of whom asked to have an “unlisted name,” which is an unusual practice. Bonumose believes that the unnamed inventors are Zhang and a former Cell-Free employee. It further believes that there was no way the Tianjin application—which substantially mirrored Bonumose’s confidential application—could have been developed without knowledge and use of the tagatose trade secrets.
The theory of Bonumose’s case is therefore that Zhang,… shared the tagatose trade secrets with the Tianjin Institute prior to the Tianjin application’s publication in November 2016. Indeed, Bonumose alleges that the Tianjin Institute paid Zhang and Cell-Free in exchange for the trade secrets. Bonumose is litigating five claims against Zhang and Cell-Free: two breach of contract claims; two trade secret claims (one federal and one state); and a declaratory judgment claim to ascertain the parties’ rights …”
These past activities do not mean that Ms. Wang would necessarily condone such activities nor that prior activities continue at the same level as they have in the past. However, it does suggest that these concerns should be addressed by WIPO or any new DG in his or her interactions with China.
Continuation of WIPO’s policies in China and the need for change
U.S. concerns about WIPO’s potential misuse of confidential information are further magnified by accusations regarding the relationship that the current DG, Francis Gurry, has enjoyed with China. I quote Mr. Pooley again:
“Mr. Gurry had negotiated secret agreements with both China and Russia, which were first announced not by WIPO but by the China Daily News and The Voice of Russia, respectively. I remember very well going to lunch with one of my senior colleagues, when he surprised me with the news of the Moscow office, while I was the one to first inform him about the Beijing office. These secretive deals provoked a storm of controversy among the member states of WIPO, and as a result at their annual meeting in October 2013 they could not agree on a budget for the organization.”
U.S. suspicions regarding Gurry’s relationship with China are magnified by his frequent travels to China and his high-level meetings with the Chinese government. Of course, there is nothing wrong with high-level Chinese government meetings, as China is an active user of the PCT and other WIPO facilities. Of concern to me is that Gurry underscores in almost all his China interviews the importance of strong government management of IP, via, inter alia, “repeated messaging from the leadership of the importance of intellectual property.” In one interview Gurry noted that China’s IP system has evolved so quickly due to the central direction given to China’s IP system, and praised China’s successful “planned, systemic and leadership-driven system.” Similarly, in a November 2019 interview, Gurry noted that China’s development in intellectual property has been “outstanding” and underscored the “focus and support of the leadership.” The interviewer, Tian Wei, by contrast, noted that “the top-down approach is of course sometimes something quite unique to China.” Gurry’s support of top-down approaches to IP also extended to his Global Innovation Index, which accords considerable weight to raw numbers invention and utility model patent filings as an indicator of innovative capacity. This approach tends to naturally favor metric-driven IP regimes.
My interview with the South China Morning Post, noted above, was in fact directed to this embrace of state-driven innovation by Gurry. As I noted in the interview “If Wang steps into those [Gurry’s] shoes, 10 years from now we will no longer have an IP system based on markets.” This blog has consistently advocated that, despite the many strengths of China’s IP regime, the main defect of China’s IP regime is the inadequate focus afforded to IP as a private property right and that an overemphasis on the “socialist” aspects of China’s developing market economy could be antithetical to such a private property rights orientation. I have not only criticized Chinese efforts which might weaken a private property rights orientation, but also the efforts of other authorities, including the US and WIPO, which support greater Chinese intervention in its markets. Gurry has consistently ignored that a “planned, systemic and leadership-driven system” can easily deviate from the commitment China made at WTO accession in acceding to the TRIPS Agreement that “intellectual property is a private right” [emphasis supplied] (TRIPS Preamble).
Would a DG Wang be different from DG Gurry? I have known DDG Wang Binying since my tenure at IP Attaché at the US Embassy in Beijing (2004-2008). She also enjoys cordial relations with many prominent and active U.S. IP lawyers and officials. Indeed, several foreigners I spoke with thought that she should be given a chance to break out from the legacy of Francis Gurry and, given her expertise, could do an excellent job. Much as Tian Wei noted in her interview that Gurry’s perspective on China’s IP regime is not consistent with some of China’s own criticisms of its regime, it would not be unusual to expect that Wang Binying may have a better understanding of the needs of her country than Francis Gurry. In this respect, Francis Gurry may have done a disservice to China, the US and Ms. Wang.
I note with regret that Francis Gurry’s legacy also goes deeper than perspectives on the role of the state in China’s IP regime. During my tenure at the U.S. Embassy in Beijing and later at the USPTO on its China team (from 2004-2008, and 2012-2017), I was never invited to a WIPO-sponsored symposium in China. In fact, I was disinvited to one symposium when a Chinese sponsor affiliated with a WIPO program noted with surprise that an American was being invited to speak at a WIPO event in China.
The data on WIPO’s website further confirms the strongly China-oriented focus of the China office’s activities in China. The online listing of programs of WIPO’s Beijing office fails to list any multinational program or a program with a foreign government. By contrast, the Singapore office holds regional and national programs, and Brazil’s office is engaged in South-South cooperation as well as hosting international events. WIPO’s HQ has hosted multinational events in China as well, such as a recent judicial program, often with US participation. I polled several diplomats who have resided in China prior to writing this blog. Although there appear to have been some positive recent developments, their past experience of being denied opportunities to participate in WIPO programs was consistent with mine. Would a DG Wang carry forward this nationalist orientation of China’s WIPO activities?
I believe that active management controls, oversight and perhaps structural reform can help address the risk of trade secret leakage and other management risks from WIPO. I also believe that, if elected, Wang Binying might be able to leave the unhealthy legacy of Francis Gurry in China behind, and indeed could help improve relations with the United States by adopting a more collaborative and balanced approach. Although she had been closely associated with DG Gurry, I know of no direct accusation against her with regard to any of the risks noted above. However, the lack of any such accusation is not proof that the risks aren’t real, nor does it mean that U.S. concerns need not be addressed. For the United States, these concerns generally also do not exist with respect to candidates from outside of China. Indeed, whatever the success of her candidacy, it would be helpful for WIPO, its member states, and Ms. Wang herself to step out of the shadows and address those legitimate concerns raised by the United States and others.
If these concerns are properly addressed, both WIPO and U.S.-China IP relations can only be strengthened, and a DG Wang, if elected, would be off to a very good start. As any student of modern Chinese knows, the Chinese term for crisis 危机 contains the character for opportunity 机会. Wang Binying’s candidacy can present such an opportunity.