On October 13 from 5:00 – 6:30 PM Pacific Time, Berkeley Law will be offering a free webinar to discuss developments in plant variety and agricultural IP protection in China. The program will also provide a window in many of the legal reforms now taking place in IP in China.
Mark A. Cohen （柯恒）
Mark Allen Cohen (柯恒) is currently the Senior Technology Fellow at the Asia Society of Northern California and at the Asia Society Policy Institute He also serves an Edison Fellow at the University of Akron School of Law and as a non-resident fellow at the Haas School of Business at the University of California at Berkeley, the University of California at San Diego, and at the National Bureau of Asian Research. He was the first Intellectual Property Attaché at the U.S. Embassy in Beijing and as Attorney-Advisor in the Office of International Relations at USPTO. Among his many awards, he is a recipient of the Meritorious Honor award from President Barack Obama on recommendation of President Obama for his work on technology transfer issues involving China This is the highest award in the U.S. civil service. In total, he has nearly 50 years of private, public sector, in house and academic experience on IPR issues in China. This blog represents the personal opinions of Mark Cohen and any guest authors only and should not be construed as the position of any third party or client. Among his recent awards, he has been given (again) a "Top 300 Global IP Strategist" award (2026) by Intellectual Asset Management magazine: https://www.iam-media.com/rankings/strategy-300.
The End-of-Year Patenting Rush and Innovation in China
According to an article coauthored by Mark Cohen in the September 2021 issue of Nature Biotechnology, government planning and targets for patents in China, while boosting overall quantity, negatively impacted overall quality. Quality concerns were manifested by a clear end-of-year trough in forward citations of patents filed near year’s end.
Forthcoming Book Talk on the Past and Future of Chinese IP
Berkeley Law will be hosting a book talk on the treatise, Intellectual Property Law in China (2d ed.) on September 23, 2021 at 5 PM Pacific Time. Registration is free. We will discuss the rapid evolution of China’s IP regime over the past 40 years as well as the likely directions that China’s IP regime will take place in the years ahead.
China Responds to EU Article 63 Request
On September 7, 2020, China responded to the EU Article 63 request. The one-page Chinese response repeats the position taken by China in 2006, that Article 63 only affords an opportunity for a member to make a transparency request of another member. As China notes in its response, “there is no such obligation under the TRIPS Agreement for China to respond.” This position repeats the position taken by China that “the TRIPS Agreement only refers to a Member’s right to request information, but there is no mention of a corresponding obligation of the requested Member to actually follow the request.” (Para. 8, P/C/W/465, Jan. 23, 2006). As this prior Article 63 response appears to be the template for some elements of the current response, I have inserted it below. The Chinese responses might be understood as rejecting a teleological interpretation of the TRIPS Agreement to effectuate its purposes, or one based on the good faith of the parties, as it is difficult to conceive of the reason for a treaty provision that offers an opportunity to make an inquiry of another country, but does not require that country to respond. The response also ignores the significant developments in case law in China in recent years.
Upcoming Berkeley Law Program on SEPs and Jurisdictional Competition
Registration is now open for the second in the “Towards a Deeper Understanding” series regarding SEPs in China. This next session will focus on “Concurrent Litigation and Jurisdictional Competition”, including the “hot” […]
u-blox v Techtotop: China’s Developing Jurisprudence on Evidentiary Burden Shifting
Hangzhou court makes cutting edge decision in July 2021 in copyright case of u-blox v. Techotop by drawing adverse inferences as to copying based on Defendant’s refusal to produce code to challenge prima facie evidence of infringement, relying on a 2001 Judicial Interpretation.
Reviewing Recent Literature on the WTO and Antitrust in IP
Two books, China and the WTO: Why Multilateralism Still Matter (Mavroidis and Sapir), and Chinese Antitrust Exceptionalism (Zhang) consider trade and competition law aspects of the U.S.-China trade dispute. They discuss the treatment of state-owned enterprises under international trade and domestic competition law rules. They also discuss IP-specific issues, particularly forced technology transfer by or for the state and the control of abusive technology licensing practices, including the licensing of standards essential patents and China’s discriminatory Administration of Technology Import/Export Regulations (“TIER”), which has since been amended. The books and article are part of several academic and popular discourses on the disruptive and unpredictable policy agenda of the Trump administration, which also provide cautionary roadmaps for future engagement – or confrontation – with China.
Rethinking US IP Diplomacy: The Role of Civil Remedies
US trade diplomacy is under-emphasizing civil remedies. Increasing criminal IP enforcement can be inconsistent with US domestic policies of utilizing criminal remedies when a civil remedy is inadequate as well as our international goals of protecting of IP as a private property right and incentivizing market mechanisms in economies such as China.
Synthesizing Developments on Linkage from the July 15 Berkeley Program
China’s new patent linkage regime involves parallel civil and administrative enforcement mechanisms. Innovative pharmaceutical companies should prepare for the possibility of generic challengers and determine which mechanism will best suit their purposes. Biologics are not protected under this new regime.
Patent Linkage Legislation Available for Today’s Program
There is still time to register for our program on patent linkage in China for today (July 15, 2021) at 5:00 PM. The registration link is here. Currently the speaker lineup includes: […]
