On November 24, 2019, the General Office of Communist Party of China and the State Council jointly released the Opinions Concerning Enhancing Intellectual Property Rights Protection (关于强化知识产权保护的意见).
It is often too easy to dismiss documents like these, that have typically delivered an ephemeral higher state of vigilance by the Chinese government. Nonetheless, there are some useful statements in this document that may be an indicator of future durable improvements, including:
- It is jointly published by the CPC and the State Council and thus has high level political and executive branch support.
- It does address some long-standing concerns raised by industry, such as development of a patent linkage system, patent term extension and copyright protection for sports broadcasts.
- There continues to be a focus on punitive damages in litigation. However, this document does appropriately point out the need to increase actual damages.
- Improving criminal enforcement, including revising criminal judicial interpretations – is also addressed. Along with revising the criminal code, revising criminal JI’s and their high criminal thresholds was a goal of the WTO case that the US filed against China over 10 years ago (DS362). This task is long overdue.
- Improving coordination between administrative and criminal enforcement is once again highlighted. This is also a long-standing issue. In light of numerous prior efforts and experiments, a more concrete explanation of how this might be accomplished to better enable prosecution of major criminal actors would be helpful in the future.
- Case guidance and public trial systems are highlighted. Hopefully, the case guidance system will add further momentum to successful case law experiments in IP at the Beijing IP Court.
- The introduction of technical assessors into administrative enforcement could suggest a continued enhanced role for patent administrative enforcement, which has been increasing even as trademark administrative enforcement has been declining. If so, it may not augur well for foreigners who have traditionally been heavy “consumers” of the administrative trademark system, but not the administrative patent system.
- Improvements in the “examination” of utility models and designs are noted as a goal. However, these rights are generally not examined for substance except in the case of “abnormal” applications.
- Continuing attention is paid to challenging markets, such as e-commerce platforms and trade fairs, as well as establishing faster protection mechanisms.
- There is a continuing focus on supporting Chinese rightsholders overseas.
This document arguably goes part-way in establishing an outline for addressing US concerns about IP theft. However, it offers little to address such concerns as ensuring greater transparency in the courts, publishing foreign-related cases, or addressing certain trade-sensitive topics outlined in USTR’s Section 301 report, such as cyber intrusions or criminal trade secret misappropriation.
The word cloud, above, is drawn from a machine translation of this document. The original Chinese language and my redlining of a machine translation are found here.
Addendum of November 26, 2019:
Susan Finder in her Supreme People’s Court Monitor blog, reported on Judicial Interpretation drafting by the SPC for next year, some of which are referenced in the recently released Opinions. According to that blog, on 29 April 2019, the SPC’s General Office issued a document setting out a list of 47 judicial interpretation projects, 36 with an end of 2019 deadline. Several of these involve IP-related issues, including issues addressed in the joint CPC and State Council Opinions, including:
- Interpretation Concerning the Application of Law in Cases of Disputes over the Infringement of Trade Secrets (关于审理侵犯商业秘密纠纷案件应用法律若干问题的解释). Responsibility of the #3 Civil (IP) Division.
- Interpretation on Several Issues Concerning Punitive Damages for Intellectual Property Infringement (关于知识产权侵权惩罚性赔偿适用法律若干问题的解释). Responsibility of the #3 Civil (IP) Division.
- Provisions on Issues Concerning the Application of the Foreign Investment Law of the People’s Republic of China (I) (关于适用《中华人民共和国外商投资法》若干问题的规定（一)). Responsibility of the #4 Civil Division. The Foreign Investment Law and the recently released draft implementing regulations contain provisions protecting the intellectual property of foreign investors, including prohibiting forced technology transfers and enhancing the availability of punitive damages.
These draft JI’s have a due date of the first half of 2020. Susan Finder notes in her blog that given the worldwide attention on the issues set forth in these three judicial interpretations, she expects that they will be released for public comment. I hasten to add that the IP Division of the Court has generally taken a positive attitude towards soliciting public comment on its draft judicial interpretations, and I hope that they maintain this tradition.
It was also noted by Susan Finder that certain JI’s were due by year-end 2019, including:
- Intellectual Property Rights Evidence Rules (关于知识产权民事诉讼证据的若干规定). Responsibility of the #3 Civil (IPR) Division. This draft was discussed at a conference hosted by the SPC in Hangzhou in 2018. As Chinese courts experiment with more expanded discovery, evidence preservation and burden of proof reversals, clearer rules regarding the obligations of parties to produce evidence are becoming more critical. A particular notable example of such a reversal is found in the recent amendments to the trade secret law (Article 32), whereby a rights holder that has preliminarily proven that it has taken reasonable confidentiality measures on the claimed trade secrets and has preliminary evidence reasonably demonstrating that its trade secrets have been infringed upon, can shift the burden of proof (BOP) to the infringer to prove that the trade secrets claimed by the right holder do not belong to those as prescribed in this law.
- Judicial interpretation on administrative cases involving patent authorization and confirmation (关于审理专利授权确权行政案件若干问题的解释). Responsibility of the #3 Civil IPR) Division. Another interpretation that previously had a 2018 year-end deadline. A draft was issued for public comment in the summer of 2018; see my earlier blog.
Addendum of November 27, 2019:
Another China law blog, the NPC Observer also expects that some of the IP legislation flagged in the Opinions for revision may be considered as early as late December of 2019t. According to the NPC Observer:
We expect the session to review a … draft amendment to the Patent Law [专利法] …The session may additionally consider the following bills: …
- draft revision to the Copyright Law [著作权法] [.]