USPTO Chinese Law Translations Available

USPTO has graciously made available here its unofficial translations of 19 IP related final and/or draft IPR Laws, Regulations, drafting descriptions of Regulations, Rules, explanations on the Rules, as well as judicial documents which had been released from April 20, 2020 until November 2020. The  drafting agencies include: the NPC (The National People’s Congress), MOJ (Ministry of Justice), CNIPA (China National Intellectual Property Administration), SAMR (State Administration for Market Regulation), NMPA (National Medical Products Administration), SPC (The Supreme People’s Court), SPP (Supreme People’s Procuratorate), and MPS (Ministry of Public Security). The index to these files with a link to the Chinese original is here. In certain cases, the draft laws have been superseded by published laws, regulations, or judicial interpretations.  The index contains links to the Chinese original of these drafts and the final version. For your convenience, we have also included a zip file with all the original Chinese.  

Please do not undertake any legal course of action on the basis of these documents.  These documents are intended to assist in better understanding and researching Chinese law, and should not be construed as either official or any form of legal advice or opinion. This blog has no copyright interest in a US government work or publication. The index was not prepared by USPTO.

Here is a list of the documents provided:

 Chinese TitleTitle as Used in File (as translated by the USPTO)
12020—2021 年贯彻落实《关于强化知识产权保护的意见》推进计划2020-2021 Plan for Implementing the “Opinions on Strengthening IP Protection” – Bilingual
2《中华人民共和国著作权法》修改对照Copyright Law Comparison Table before/after Amendment
3刑法修正案草案知识产权条款Draft Criminal Law Amendments IP Provisions  
4《商业秘密保护规定(征求意见稿)》Draft Rules of Trade Secret Protection
5关于《商业秘密保护规定(征求意见稿)》的说明SAMR Explanations Draft Rules of Trade Secret Protection
6《药品专利纠纷早期解决机制实施办法(试行)(征求意见稿)》Draft Trial Implementing Measures of Early Resolution Mechanism for Drug Patent Disputes
7《药品专利纠纷早期解决机制实施办法(试行)》(征求意见稿)起草说明Explanation for Trial Implementing Measures of Early Resolution Mechanism for Drug Patent Disputes
8《关于强化行政许可过程中商业秘密和保密商务信息保护的指导意见(征求意见稿)》Guidelines for Strengthening Protection of Trade Secrets and Confidential Business Information during Administrative Licensing
9《关于强化行政许可过程中商业秘密和保密商务信息保护的指导意见(征求意见稿)》的起草说明Drafting Description of the Guidelines for Strengthening Protection of Trade Secrets and Confidential Business Information during Administrative Licensing
10关于审理涉药品上市审评审批专利民事案件适用法律若干问题的规定(征求意见稿)Provisions of the Supreme People’s Court on Several Issues Concerning Application of Law to the Trial of Patent Civil Cases Involving the Review and Approval for Drug Marketing
11《关于审理涉电子商务平台知识产权民事案件的指导意见(征求意见稿)》Guiding Opinions of the Supreme People’s Court on the Trial of Cases of Intellectual Property Right Disputes Involving E-Commerce Platforms
12最高法关于涉网络知识产权侵权纠纷几个法律适用问题的批复Official Reply of the Supreme People’s Court on the Application of Law on Disputes over Online Infringements on Intellectual Property Rights
13全国打击侵犯知识产权和制售假冒伪劣商品工作领导小组办公室等单位关于公开征求《关于加强侵权假冒商品销毁工作的意见(征求意见稿)》意见的公告Notice on Collecting Public Comments on the Opinions on Strengthening the Destruction of Infringing and Counterfeit Goods (Draft for Public Comments) by the Office of the National Leading Group for the Crackdown on IPR Infringing and Counterfeit Goods
14关于加强侵权假冒商品销毁工作的意见(征求意见稿)Opinions on Strengthening the Destruction of Infringing and Counterfeit Goods    
15行政执法机关移送涉嫌犯罪案件的规定 (修订征求意见稿)Provisions on the Transfer of Suspectable Criminal Cases by Administrative Organs for Law Enforcement – Bilingual
16最高人民法院《关于知识产权民事诉讼证据的若干规定(征求意见稿)》Certain Provisions of the Supreme People’s Court on Evidence in Civil Intellectual Property Litigation  
17最高人民法院关于依法加大知识产权侵权行为惩治力度的意见 《关于加大知识产权侵权行为制裁力度的意见(征求意见稿)》Opinions of the Supreme People’s Court on Strengthening Punishment Intensity of Acts Infringing Intellectual Property Rights
18最高人民法院、最高人民检察院就《关于办理侵犯知识产权刑事案件具体应用法律若干问题的解释(三)(征求意见稿)》向社会公开征求意见的通知Soliciting Public Comments on the draft “Interpretation III on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights (Draft)”
19最高检、公安部就《关于修改〈最高人民检察院 公安部关于公安机关管辖的刑事案件立案追诉标准的规定(二)〉侵犯商业秘密案立案追诉标准的补充规定(征求意见稿)》向社会公开征集意见Supplementary Regulations Concerning Amendment of the Standards on Docketing for Prosecution of Infringements on Trade Secrets in the Regulations of the Supreme People’s Procuratorate and the Ministry of Public Security Concerning Standards on Filing Criminal Cases under the Jurisdiction of Public Security Organs (II)

Proposed Amendments to the Criminal Code on Trade Secrets

Amendments to the Criminal Law regarding trade secret theft have been announced by the NPC.   A new provision is proposed to be added to the end of  Article 219 of the Criminal Law:

“Whoever steals, spies, buys, or illegally provides commercial secrets to overseas institutions, organizations, and personnel shall be sentenced to fixed-term imprisonment of not more than five years or detention, in addition to being fined or with a single fine; if the circumstances are serious, the penalty shall be more than five years’ imprisonment with fines.”

This provision complements Article 20 of the Opinions on Increasing the Level of Sanctions for Intellectual Property Infringement (Consultation Draft),  as well as Article 10 of Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property (3) (Draft for Comment)  which provide that “ Serial infringers of IP rights, as well as those who steal commercial secrets for foreign agencies, organizations or individuals, shall be subject to severe penalties according to law and generally no probation shall be applied” (为境外的机构、组织、人员侵犯商业秘密的情形,依法从重处罚,一般不得适用缓刑.  ).  The official explanation of the draft criminal code revision notes that the changes are intended to address “commercial spying”.

These changes have also been discussed in a blog by Aaron Wininger, and a recent article in the South China Morning Post, which called the proposed amendments a “tit for tat” provision in retaliation for US economic espionage cases.  Although this provision may have been drafted to retaliate against the United States, the structure and purpose is different from the Economic Espionage Act of 1996  (EEA)  18 USC Sec. 1831.  The EEA defines  “economic espionage” as the “theft or misappropriation of a trade secret with the intent or knowledge that the offense will benefit any foreign government, foreign instrumentality, or foreign agency.”  A casual reading may suggest that the EEA is similar to proposed amendments to Section 219 in that it covers any trade secret theft that would benefit a foreign “instrumentality” or “agency.” This is an incorrect readingThe definitions of a foreign agent or foreign instrumentality leave no doubt that the individual or entity must be the agent of a foreign government, 18 USC Sec. 1839(1).  In addition, a second provision of the EEA criminalizes the more common commercial theft of trade secrets in foreign or instate commerce regardless of who benefits, 18 U.S.C. § 1832.

Importantly, the US Sentencing Guidelines do provide for an enhanced penalty if “ the offense involved misappropriation of a trade secret and the defendant knew or intended— that the trade secret would be transported or transmitted out of the United States,” or “ the offense would benefit a foreign government, foreign instrumentality, or foreign agent.”  The US Sentencing Commission has stated that enhanced penalties are needed to address “the transmission of stolen trade secrets outside of the United States [which] creates significant obstacles to effective investigation and prosecution and causes both increased harm to victims and more general harms to the nation. With respect to the victim, civil remedies may not be readily available or effective, and the transmission of a stolen trade secret outside of the United States substantially increases the risk that the trade secret will be exploited by a foreign competitor.”

The motivations for China’s enactment of this amendment does not appear to be issues of private international law.  As drafted, the provision retaliates against companies and individuals rather than foreign governments.  It is conceivable, as the SCMP article implies, that Chinese companies that have been targets of EEA actions may desire this tool to exact greater leverage in their US cases.   Nonetheless, it is worth discussing how private international law issues are not very germane to this amendment.  Individuals can be prosecuted overseas with greater ease than the government.  Hence, there is no need to target individuals.  Of course, if the basis of China’s adopting this provision were to address difficulties in bringing cases overseas, more effective judicial and law enforcement cooperation between our countries could help reduce the need for China’s enactment of this provision and strengthen mutual trust.   For example, the United States government has sought on numerous occasions for over a decade to solicit cooperation from Chinese law enforcement to address transborder IP crimes, with limited success through the Joint Liaison Group between law enforcement agencies, as well as through trade-related dialogues. See Tools to Address US-China Economic Challenges, at 98.  Moreover, the need to address judgment-proof defendants in trade secret cases that are located overseas is less pressing for Chinese plaintiffs.  Money judgments for trade secret cases are likely enforceable in the United States. US money judgments for a trade secret theft are not yet similarly enforceable in China.

The greatest risk presented by this provision may be that it could also have a further chilling effect on a range of commercial conduct by foreigners in China.  It may encourage domestic litigants to search for a foreign party in otherwise domestic litigation in order to exert additional leverage on the litigant.   As the crime is also now considered more serious, police and prosecutors may also commit more resources to the investigation and prosecution of foreigners.  Foreign companies investing or collaborating with Chinese counterparts may also now discover that an allegation of trade secret theft is more common in order to exact a commercial advantage in a commercial divorce from a foreign partner, such as when a prospective investment in a Chinese company is rejected, or there is a dispute over ownership of a patent or other technology.   If enacted as drafted, foreign companies may wish to consider adopting defensive measures, including revising their NDA’s and other agreements with Chinese parties, as well as implementing more stringent controls to minimize the risks of such allegations.

The United States has long sought revisions to China’s Criminal IP Laws.  In 2007, it filed a WTO case against China to lower existing criminal thresholds on copyright and trademark crimes.  Additional reforms are also contemplated by Section I of the IP Chapter of the Phase 1 Trade Agreement.

Comments on this provision are due by August 16, 2020.