Category: Phase 1 Agreement

Bureaucracy and Politics in Recent SAMR Legislation

There are numerous heirarchies to Chinese legislation and IP laws are certainly not an except to this. Due to the government reorganization in 2018, Chinese efforts to become an innovative economy, and external political pressure from the Trade War, there has also been extensive external political pressure on Chinese IP legislative efforts. The different approaches to legislating may indicate potential weaknesses in the laws. They may also be the outcome of internal bureaucratic struggles.

A Season of CNIPA Rulemaking

Several new rules from China’s State Administration for Market Regulation portend a more active role for administrative enforcement of patents, in both patent linkage and major disputes affecting Chinese national interests. How much due process do these rules afford? Are they compatible with the TRIPS Agreement? Will foreigners be treated fairly? Will the administrative agencies be transparent in their decisions and make their cases publicly available. SAMR’s database of IP cases is also relatively new.
There are a number of open issues.

The WTO IP Cases That Weren’t

Does the WTO / TRIPS Agreement still have teeth on IP? This blog explores the possible claims that could be made involving TRIPS Agreement violations and China. The more important claims are complex, data-dependent, and would require a whole of government approach by the Biden adminisitration.

Draft Judicial Interpretation on Patent Linkage Released by SPC

The Supreme People’s Court issued the its draft patent linkage Judicial Interpretation, the “Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving Drug Marketing Review and Approval of Patent” (Draft for Solicitation of Comments)” The deadline for submission of comments on the JI is Dec. 14. The JI sets up a possible jurisdictional battle between the courts and administrative agencies in adjudicating patent linkage cases.