What Might His Appointment Mean for U.S.-China IP Relations?

Chen Fuli (陈福利) has been appointed Secretary of the Communist Party Leadership Group (党组书记) of the China National Intellectual Property Administration (CNIPA), succeeding Shen Changyu in the Party position. Shen has been selected to become a Deputy Director General of WIPO, leaving the CNIPA Commissioner position open.

I have known Dr. Chen for many years. From August 2009 to October 2014, he served as China’s IP specialist at the Chinese Embassy in Washington, in a position roughly symmetrical to the USPTO IP attaché position that I occupied in Beijing from 2004-2008. He appears repeatedly in this blog during his Washington and MOFCOM years, during which IP discussions were an active part of the Joint Commission for Commerce and Trade and other dialogues. We both also participated a number of governmental and non-governmental programs, including in Fordham’s first China-focused IP conference in 2012, where Chen spoke about IP and cyberspace and then-USPTO Director David Kappos gave the closing remarks. See “Understanding China’s New Environment for Intellectual Property.”

Upon returning to Beijing from D.C., Chen became Director General of MOFCOM’s Department of Treaty and Law, with responsibilities extending beyond IP into WTO law, international economic agreements and trade disputes. He later moved to the National People’s Congress, where he served on the NPC Standing Committee at vice-ministerial rank. His appointment to CNIPA is another milestone in a career that also demonstrates that IP expertise is hardly a dead end in the Chinese bureaucracy.

Chen wrote Study on WTO IPR Dispute Between China and the United States, published by Intellectual Property Publishing House in 2010. The book concerns DS362, the WTO IP case brought by the United States against China. I have discussed DS362 repeatedly on this blog, including weaknesses in the U.S. strategy and USTR’s underestimation of some of the broader effects of the case. See “The WTO IP Cases That Weren’t” and my later discussion in “Australia, US, and EU Submissions at the WTO on China and Anti-Suit Injunctions.”

Chen also had longstanding ties to Professor Liu Chuntian and the Renmin University IP community. Chen, Liu and I participated together in a 2017 MOFCOM-USPTO-Renmin University program on cross-border technology transfer and IP licensing. Technology transfer has since become an important in the bilateral relationship. See “Two Upcoming Events: Innovation and Technology Licensing.”

Chen’s move from the NPC to CNIPA also has American parallels. For example, Jim Rogan became USPTO Director after serving in Congress; Jon Dudas moved from senior House Judiciary Committee staff into USPTO leadership; and, more recently, Peter-Anthony Pappas moved from Senator Thom Tillis’s staff to become a Commissioner of the U.S. International Trade Commission.

The Party Secretary is not simply CNIPA’s “number two.” The Party Secretary heads CNIPA’s Party organization and is responsible for implementing central Party policy, while the Commissioner formally manages the agency. The two positions have frequently been held by the same person, including Shen Changyu, but can be separated. Following the 2018 institutional reorganization, Liu Junchen served as Party Secretary and Deputy Commissioner while Shen remained Commissioner; Liu did not subsequently become Commissioner. Chen’s appointment therefore does not by itself establish whether he will also succeed Shen as Commissioner. That remains possible.

His experience may also strengthen CNIPA’s role in trade-related IP issues and in the development and coordination of domestic Chinese IP policy, including areas where CNIPA shares responsibilities with other agencies. Moreover, newly emerging issues involving AI, data and IP will require the kind of interdisciplinary background that has been one of his strengths. Chen’s appointment could help contribute to improving the U.S.-China IP relationship in which Chen has already been a participant for many years.

In American terms, the appointment resembles bringing a senior USTR IP official with substantial recent congressional experience into USPTO leadership as Under Secretary of Commerce for Intellectual Property and Director of the USPTO, after that official had also served in the U.S. Embassy in Beijing and negotiated high-level IP issues with China. The analogy is necessarily inexact because of differences between the two systems, particularly Chen’s role as Party Secretary.

I wish Dr. Chen the best of luck in his demanding new job.

Photograph (c) Mark A. Cohen.