Second US-China IPR Cooperation Dialogue Report Released

Dialogue Photo

The 2014-15 US – China IP Cooperation Dialogue report has been just released by the US Chamber of Commerce.  The  Chinese title: 中美知识产权学者对话纪要. Here is a link to last year’s report for comparison.

The report was chaired by former PTO Director Dave Kappos on the US side, and Dean Liu Chuntian of Renmin U. on the Chinese side.  Former judges Rader and Cheng Yongshun were also were part of the team.  At our various meetings we hosted former SIPO Commissioner Tian Lipu, NCA Vice Commissioner Yan Xiaohong, senior judges from the IP courts and Supreme People’s Courts, trademark officials, academics and others.  I was part of the U.S. side for a second year, and was joined by Tony Chen of Jones Day and Eric Priest of the University of Oregon.

The report looks at several issues: IP and innovation in the technical sector; IP and innovation in the pharmaceutical sector;  judicial protection of IP; trade secrets protection; and copyright enforcement.  The following are some of the baskets of proposals agreed to by both sides (more granular detail is found in the report itself):

  • Use quality instead of quantity as the measure of innovation.
  • Explore the possibility that a judicial interpretation be issued to ensure no injunctive threat is available until utility model patents have been substantively examined for validity.
  • Adopt a more balanced and market-driven approach to promote innovation by entrepreneurs, inventors and universities.
  • Improve the patent linkage system, and provide effective protection for clinical data of new chemical entities by using the ongoing effort to amend the Patent Law and the Drug Administration Law as an opportunity for change.
  • Initiate a special study on establishing a single IP appellate court to unify China’s judicial adjudication of IP.
  • Improve the guiding case system with respect to procedures for reviewing, selecting and releasing cases and support better adoption of case law information.
  • Recommend research on the possibility to have a stand-alone and uniform trade secret law, in order to effectively maintain a fair market competition environment.
  • Address new problems created by changing technology and business models; develop a good ecosystem for innovation by the interaction of law and the marketplace; and provide more market opportunities for copyright holders while dealing with piracy.

I have strongly supported the Dialogue since its inception, when I was at Fordham Law School, in order to provide a de-politicized, expert and wide ranging engagement on Chinese IP issues.  If last year’s report is an indication of how this year’s report will be received, it will likely be widely circulated inside and outside the Chinese government.

open dialogue meeting with Amb. Baucus, US and Chinese colleagues in Beijing in early 2016.

Photos above by Mark Cohen.  Top photo at Hainan Island meeting, bottom photo in Beijing at public meeting with U.S. Amb. Max Baucus, US and Chinese guests and dialogue experts (both photos early 2015).

New SPC Guidance on Appointments to and Jurisdiction of Specialized IP Courts

There have been two documents released recently on specialized IP courts. One is the “Guiding Opinion of the Supreme Peoples Court on on the Work of Choosing Judges Rules for the IP Courts” (Provisional) 知识产权法院法官选任工作指导意见(试行) and the other is the  “Regulation of the SPC on Jurisdiction of Cases of the Beijing, Shanghai and Guangzhou IP Courts” 《最高人民法院关于北京、上海、广州知识产权法院案件管辖的规定》.

I welcome commentary and analysis on these two.

US-China Business Council Ranks IP as a Top Five Concern

The US-China Business Council recently released its annual China Business Environment Survey Report (http://uschina.org/reports/uscbc-2014-china-business-environment-survey-results). Intellectual property enforcement climbed the ranks to number 2, just after concerns over competition with Chinese companies in China. Companies positively noted certain IP developments, including more administrative actions, greater attention to the IP legislative framework and China’s incipient efforts at developing specialized IP courts.

Forty-nine percent of the respondents indicated that criminal enforcement was not a viable option, and only eight percent of the respondents indicated that criminal enforcement was a successful channel – the lowest of any enforcement channel.

There were other top 10 concerns that related to IP, including concerns over uneven enforcement of the laws and AML enforcement, transparency and national treatment.

Other concerns related to IP include technology transfer (ranked 11th), antitrust enforcement(ranked 22nd), and innovation policies (ranked 24th). Sixty-two percent of companies report that they are concerned about transferring their technology to China, particularly as it relates to the protection of intellectual property rights and proprietary information and the enforcement of technology licensing agreements. Forty-eight percent of the companies also surveyed said that they limited R&D activities in China due to China’s IP environment.

Clearly, IP and licensing concerns are impacting China’s ability to attract cutting-edge technology from foreign companies.