CNIPA released on April 20, 2020, its 2020-2021 Implementation of the “Opinions on Strengthening the Protection of Intellectual Property” Promotion Plan” (2020—2021年贯彻落实《关于强化知识产权保护的意见》推进计划) (the “Promotion Plan”). Attached are a copy of the Promotion Plan from the CNIPA website and a machine translation, as well as a bilingual translation provided by the USPTO. All translations are provided for readers’ convenience only, are unofficial and do not carry any representations as to accuracy. Please review them carefully before committing to any course of action based on the translation, and please bring any errors to our attention. We greatly appreciate USPTO, China Law Translate, and the numerous trade associations and law firms that have made translations publicly available over the years.
The Promotion Plan specifically references and appears to be a further implementation of the CPC/State Council Opinion on Strengthening the Protection of Intellectual Property, released in November 2019 (关于强化知识产权保护的意见) (CPC/State Council Opinion), which I blogged about here. In November I described this CPC/State Council Opinion as going “part way” in addressing US concerns about IP theft that were being raised by the Trump Administration. This Promotion Plan issued by CNIPA is more comprehensive and more directly reflects the Phase 1 Trade Agreement between the US and China that the CPC/State Council Opinion, including setting specific timetables and interagency responsibilities. However, it is being promulgated at a considerably lower level of governmental authority than the CPC/SC Opinion. CNIPA is a division within a ministry-level agency (SAMR) and is arguably weaker and less independent today than when SIPO was a separate agency. In this respect, the Promotion Plan is also weaker than previous action plans promulgated under MofCOM’s leadership. MofCOM and its predecessor agencies were ministries. In a sense, it harkens back to action plans from the 1990s. The IPR Leading Group was chaired in the 1990s often by a Vice Minister, including Wu Yi, who later became Vice Premier. One may wonder: is this “déjà vu all over again”?.
Some caution also needs to be maintained in approaching this document. First and foremost, are all the Phase 1 commitments, in the words of a once famous commercial for spaghetti sauce – “in there”? Please write to me with your observations. A second issue involves CNIPA’s authority. Although this document sets out plans for the courts, procuracy, and legislative branches, Chinese state council government agencies do not have the authority to bind these other branches of government. Nonetheless, these agencies often coordinate their activities together, including through national and local leading groups and coordinating bodies. The puzzle deepens further, however, as the Promotion Plan itself does not indicate the authority by which it has been enacted. Rumor had been that the Promotion Plan was delayed because NPC approval was needed.
To an experienced reader, this Promotion Plan also has the “look” and “feel” of the National IP Strategy Implementation Plan (NIPS Implementation Plan) with its extensive, specific commitments. I blogged about the NIPS Implementation Plan here. The NIPS Implementation Plan has a statutory basis in the China Science and Technology Promotion Law (2007). Moreover, the NIPS Implementation Plan similarly has a focus on China becoming a “strong” IP country.
One difference between a NIPS Implementation Plan and an implementation plan from MofCOM in the past is that a NIPS Implementation Plan would have likely needed more local coordinating entities to be implemented nationwide. MofCOM had such authority through its coordination of the former State Council leading groups on IP. While serving in the Embassy (2004-2008), I visited many of the local IP coordination offices to discuss local IP coordination and enforcement issues. This plan, if it is to be rolled out locally through new mechanisms, will need the support of the CPC and State Council, or local CNIPA offices, or through other local structures.
Several friends have been asking me this morning if this is the Chinese IPR “Action Plan” as required by the Phase 1 Agreement. The Phase 1 Agreement provided that “Within 30 working days after the date of entry into force of this Agreement, China will promulgate an Action Plan to strengthen intellectual property protection aimed at promoting its high-quality growth. This Action Plan shall include, but not be limited to, measures that China will take to implement its obligations under this Chapter and the date by which each measure will go into effect.”
On the first review, this Promotion Plan appears to directly reflect the commitments made by China in the Phase 1 Agreement. What the US has called “high-quality growth” might be its misapprehension of China’s recent mantra of building a “strong IP economy.” There are many action items in the Promotion Plan that are focused on strengthening China’s IP resources. Considering the current pandemic, the timing for the release of the Promotion Plan is also about right. Moreover, it makes sense for China to release this document as part of the flurry of announcements surrounding April 26 (World IP Day). CNIPA releasing this document also does not contradict any explicit commitment in the Phase 1 Agreement. The negotiators of the Phase 1 Agreement did not apparently agree to nominate which Chinese agency would issue the Action Plan.
Based on a quick read, this Promotion Plan also appears to share the same weaknesses of the Phase 1 Agreement, with its selective focus, under-emphasis on the courts, lack of clarity around “patent linkage” (including “artificial infringement” determinations by the courts), continuing emphasis on ministry action plans and administrative enforcement, lack of historical context or data to ensure that the Promotion Plan actually delivers results, “old wine in a new bottle” commitments in Customs, criminal thresholds and other areas, and lack of any commitment to increasing administrative and judicial transparency. The lack of strong commitments to increasing judicial and administrative transparency remains the most troubling of all and makes the agreement difficult for governments and rightsholders to adequately apprehend, including making sure that concrete improvements are not only “in there” but being fully implemented. If the Phase 1 commitments implemented in the 133 action items of the Promotion Plan are the “Action Plan” it is a further indication that any forthcoming changes in China’s IP regime that arose from the trade war are likely to be significant, but not necessarily the kind of “structural change” that would dramatically mandate more market reform through less government intervention in China’s IP regime.
Categories: 1995 IP MOU, China IPR, CNIPA, National Leading Group, NIPS, NIPSO, Section 301, Strong IP Country, trade war, Transparency, 关于强化知识产权保护的意见
Great blog Mark! I agree with you that there is a definite lack of clarity around many of the issues and implementation authority. Still, I found CNIPAs plan to cover almost all of the commitments laid out in the Phase One agreement, and am pleased to see concrete deadlines attached to many. It seems that those lacking specific deadlines are for the most part commitments that require legislative revisions – but it appears that the revisions mentioned to are those already on the NPCs schedule for the year.
Would’ more market reform through less government intervention in China’s IP regime’ be a good thing for the Chinese people?
If it moves China’s IP regime closer to our own, I (and CEPR’s Dean Baker) would say, “No.”
Thus far, would you say that the Phase one deal has made independent and significant advances? Or, has nothing really happened, or was what happened likely to happen anyways because it was on the Chinese agenda?
This is a tough question. I think the Phase 1 Agreement has helped accelerate certain legislative reforms. Some of these were in the works before (pharmaceutical IP reforms), some were lagging (trade secret reforms) and some would have been pushed through the WTO successfully regardless (technology transfer regulations). Also, some of what was negotiated was irrelevant or perhaps regressive (special campaigns). Finally many important things were omitted entirely (transparency in the courts, technology-related IP other than pharmaceuticals). On balance, I would say that considering the cost to the country and the sanctions imposed, we did not achieve the structural reforms that were the goal, we engendered a series of retaliatory moves, we strengthened statist approaches to IP , we weakened the WTO mechanisms by not trying those first and we raised awareness around some important issues. Was it worth it? Time will tell, but I suspect it could have been done much more effectively/.
Interesting. Thanks for the response.