In an apparent effort to appease Donald Trump, China issued guidelines on Sunday aimed at strengthening intellectual property protections.
IP theft is one of the key sticking points in the protracted trade talks between Washington and Beijing. Generally speaking, nobody believes that the Trump administration is likely to succeed when it comes to forcing the Chinese to make the kind of sweeping changes that would need to be implemented in order to seriously address myriad grievances related to intellectual property.
As vexing an issue as this is, it’s not considered to be the highest hurdle in the ongoing talks, which means there’s scope for some concessions from Beijing. The new guidelines may or may not count as “concessions”, but hopefully, the White House will view the announcement as an olive branch. As a reminder, we’re now just three weeks away from another round of tariffs being implemented – the majority of targeted goods in the next round are consumer items.
“Strengthening the protection of intellectual property rights is important… and the biggest incentive to improve China’s economic competitiveness”, the decree reads. It then offers a series of “proposals”.
As ever, the translation is somewhat humorous. Take this bit, for example:
Strive to achieve effective containment of infringement and prostitution in 2022. By 2025, the social satisfaction of intellectual property protection will reach and maintain a high level, the protection capacity will be effectively improved, the protection system will be more perfect, the business environment that respects the value of knowledge will be more optimized, and the basic guarantee function of the intellectual property system to stimulate innovation will be more effectively played.
There are a lot of “will bes” in there (and a fun reference to “prostitution”). The rest of the sweeping “opinion” is riddled with promises and allusions to what can be achieved, rather than definitive pronouncements about precisely what’s going to happen and when.
Paradoxically, there’s a sense in which China makes so many promises over the course of the opinion that it’s not clear accomplishing it all would be possible even if the political will existed in Beijing. For instance, read this bit on enforcement and punishment:
Strengthening the punishment of infringement and counterfeiting. Study the necessity and feasibility of formulating basic intellectual property laws, and accelerate the revision and improvement of patent law, trademark law, and copyright law. Improve legislation related to the protection of geographical indications. Accelerate the introduction of infringement punitive damages in the fields of patents and copyrights. Greatly increase the maximum amount of legal compensation for infringement and increase damages. Strengthen civil judicial protection and effectively implement the punitive damages system. The study will take measures such as confiscation of illegal income, destruction of infringement and counterfeit goods, increase administrative penalties, and carry out special actions in key areas, key links, and key groups for administrative law enforcement. Regulate trademark malicious registration, abnormal patent applications, and malicious litigation. Explore and strengthen effective protection of trade secrets, confidential business information and source code. Strengthen criminal justice protection and promote the revision and improvement of criminal laws and judicial interpretations. Increase the intensity of criminal attacks, study the criteria for reducing the crime of infringement of intellectual property rights, increase the punishment of sentencing, modify the expression of crimes, and promote the resolution of the disposal of infringing articles involved. We will strengthen the construction of a system to combat infringement and counterfeiting crimes, explore and improve the working mechanism of data-based anti-counterfeiting intelligence, and carry out normalized special crackdowns to maintain a high-pressure and severe-strike situation.
Believe it or not, that’s just one passage from the section on strengthening institutional constraints and providing for proper enforcement.
In any event, those interested can read the full decree below, but suffice to say the overarching message is that Beijing is taking steps to get the vaunted (or lampooned, depending on your penchant for laughing at “the art of the deal”) “Phase One” agreement across the finish line in time to avert the imposition of 15% tariffs on another $160 billion in Chinese goods on December 15.
If those levies were to be put in place, Trump would have made good on his promise to go “all-in” on the trade war by taxing everything China ships to the US.
Full IP reform guidelines (translated)
The General Office
of the Central Committee of the Communist Party of China issued the “Opinions on Strengthening the Protection of Intellectual Property Rights”
Xinhua News Agency, Beijing, November 24th Recently, the General Office of the CPC Central Committee and the General Office of the State Council issued the “Opinions on Strengthening the Protection of Intellectual Property Rights” and issued a notice requesting all departments of various regions to conscientiously implement them in light of the actual situation.
The full text of the “Opinions on Strengthening the Protection of Intellectual Property Rights” is as follows.
Strengthening the protection of intellectual property rights is the most important content to improve the system of property rights protection and the biggest incentive to improve China’s economic competitiveness. In order to implement the decision-making arrangements of the Party Central Committee and the State Council on strengthening intellectual property protection, and further improve the system and optimize the mechanism, the following opinions are proposed.
First, the overall requirements
Guided by Xi Jinping’s new era of socialism with Chinese characteristics, comprehensively implement the spirit of the 19th and 19th Central Committees of the 19th and 19th Central Committees, and closely promote the overall layout of the “five in one” and coordinate the promotion of “four.” A comprehensive “strategic layout, firmly establishing the protection of intellectual property rights is the concept of protecting innovation, adhering to strict protection, overall coordination, key breakthroughs, equal protection, continuous reform and improvement of intellectual property protection systems, comprehensive use of law, administration, economics, technology, social governance Means to strengthen protection and promote the overall improvement of protection capacity and level. Strive to achieve effective containment of infringement and prostitution in 2022, and the situation of rights holders’ rights protection is difficult to prove, long cycle, high cost and low compensation. By 2025, the social satisfaction of intellectual property protection will reach and maintain a high level, the protection capacity will be effectively improved, the protection system will be more perfect, the business environment that respects the value of knowledge will be more optimized, and the basic guarantee function of the intellectual property system to stimulate innovation will be more effectively played. .
Second, strengthen institutional constraints, establish strict guidelines for intellectual property protection policy
(1) Strengthening the punishment of infringement and counterfeiting. Study the necessity and feasibility of formulating basic intellectual property laws, and accelerate the revision and improvement of patent law, trademark law, and copyright law. Improve legislation related to the protection of geographical indications. Accelerate the introduction of infringement punitive damages in the fields of patents and copyrights. Greatly increase the maximum amount of legal compensation for infringement and increase damages. Strengthen civil judicial protection and effectively implement the punitive damages system. The study will take measures such as confiscation of illegal income, destruction of infringement and counterfeit goods, increase administrative penalties, and carry out special actions in key areas, key links, and key groups for administrative law enforcement. Regulate trademark malicious registration, abnormal patent applications, and malicious litigation. Explore and strengthen effective protection of trade secrets, confidential business information and source code. Strengthen criminal justice protection and promote the revision and improvement of criminal laws and judicial interpretations. Increase the intensity of criminal attacks, study the criteria for reducing the crime of infringement of intellectual property rights, increase the punishment of sentencing, modify the expression of crimes, and promote the resolution of the disposal of infringing articles involved. We will strengthen the construction of a system to combat infringement and counterfeiting crimes, explore and improve the working mechanism of data-based anti-counterfeiting intelligence, and carry out normalized special crackdowns to maintain a high-pressure and severe-strike situation.
(2) Strictly standardize the standards of evidence. We will further promote the reform of the “three-in-one” trial mechanism for intellectual property rights in civil, criminal and administrative cases, improve the appeal mechanism for intellectual property cases, and unify trial standards. Formulate and improve the standards for trademark and patent infringement in the process of administrative law enforcement. Standardize the standards of evidence in different channels such as judicial, administrative law enforcement, arbitration, and mediation. Promote the coordination of administrative law enforcement and criminal justice filing standards, improve the requirements of case transfer and evidence standards, formulate evidence guidelines, and smooth administrative law enforcement and criminal justice. Formulate judicial interpretation of the evidence rules for intellectual property civil litigation, and focus on solving the problem of the right holder to prove the evidence. Exploring the establishment of a notarized reward and evidence collection system for infringement, and reducing the burden of burden of proof on the right holder.
(3) Strengthen the enforcement measures of the case. Establish and improve the judicial confirmation mechanism for intellectual property dispute mediation agreements. Establish and improve the “blacklist” system for the integrity of market participants, implement the credit classification supervision of market entities, establish a system for the publication of repeated infringements, intentional infringements, and improve the mechanism of joint disciplinary actions. Gradually establish a case guidance mechanism for intellectual property protection in all areas and a public trial mechanism for major cases. Strengthen supervision and inspection of the implementation of cases in different places, and promote the formation of a unified and fair legal environment.
(4) Improve the protection system for new forms of new business. In view of the development status of new business areas, research and strengthen the protection of patents, trademarks, copyrights, new plant varieties and layout designs of integrated circuits. Explore the establishment of a drug patent link system and a patent patent period compensation system. Study and strengthen the protection of intellectual property rights in sports events. Strengthen the promotion and application of notarized electronic deposit certificate technology. Study and establish rules for cross-border e-commerce intellectual property protection, and establish protection standards for e-commerce platforms. We will formulate guidelines for the protection of intellectual property rights of enterprises, formulate operational guidelines such as contract models and rights protection procedures, encourage enterprises to strengthen the construction of risk prevention mechanisms, and continuously optimize the public entrepreneurship to protect and protect the environment. Study and formulate protection methods in areas such as traditional culture and traditional knowledge, and strengthen the protection of intellectual property rights of Chinese medicine.
Third, strengthen social supervision and governance, and build a work pattern of intellectual property protection
(5) Strengthening law enforcement supervision. Strengthen the supervision of the people’s congress and carry out intellectual property law enforcement inspections. Give play to the democratic supervision role of the CPPCC and conduct regular research on intellectual property protection. Establish and improve the system of reward and punishment, and improve the effectiveness of law enforcement supervision. Strengthen supervision and accountability, promote the implementation of relevant provisions on the disclosure of administrative law enforcement information, and more extensively open up information on law enforcement and handling cases, and accept social and public opinion supervision.
(6) Establish and improve the mode of social co-governance. Improve the mechanism of intellectual property arbitration, mediation, and notarization, and cultivate and develop arbitration institutions, mediation organizations, and notary agencies. Encourage industry associations and chambers of commerce to establish self-discipline and information communication mechanisms for intellectual property protection. Guide the agency industry to strengthen self-discipline and autonomy, and comprehensively improve the supervision level of agencies. Strengthen the construction of the credit system, and the information on the registration of intellectual property rights, administrative penalties, random inspection results, etc., shall be uniformly collected and publicized by the national enterprise credit information publicity system. Establish and improve the volunteer system, and mobilize social forces to actively participate in the protection of intellectual property rights.
(7) Strengthen professional and technical support. Strengthen scientific and technological research and development, and strengthen intellectual property protection through technical means such as source traceability, real-time monitoring, and online identification. Construct an intelligent detection system for infringement and counterfeiting clues, and improve the efficiency and accuracy of cracking down on infringement and counterfeiting. Introduce a technical investigator system in the handling of intellectual property administrative law enforcement cases and judicial activities to assist administrative law enforcement departments and judicial departments to accurately and efficiently identify technical facts. Explore ways to strengthen the capacity building of intellectual property infringement identification, study and establish an infringement damage assessment system, and further strengthen the professionalization and standardization of judicial appraisal institutions.
Fourth, optimize the coordination mechanism to break through the key links of intellectual property protection
(8) Optimize the procedures for the authorization and authorization of rights and rights. Strengthen the review of patents, trademarks, and new varieties of plants, and further reduce the review cycle. Focus on improving the quality of patent examinations for utility models and designs, and strengthening source protection. Further play the role of patent litigation administrative confirmation remote trial and off-site trial system in the handling of major infringement administrative law enforcement cases. We will improve the linkage mechanism between administrative confirmation, notarization, arbitration, mediation, administrative law enforcement, and judicial protection, strengthen information communication and sharing, and form an operational mechanism that integrates organic channels and complement each other’s advantages, and effectively improves the efficiency of rights protection.
(9) Strengthen cross-departmental and cross-regional case-handling cooperation. Formulate procedures for handling cross-sectoral cases and improve the joint investigation and transfer mechanism for major cases between departments. Improve the linkage mechanism between the administrative law enforcement department and the public security department for the investigation and handling of intellectual property cases suspected of crimes. Explore the establishment of arbitration and mediation priority recommendation mechanisms in multiple cases. Establish and improve the diversion system for intellectual property cases, and promote the reform of the case-sharing and diversion mechanism. Promote the establishment of a cross-regional review mechanism for intellectual property cases in provincial administrative regions, give full play to the role of designated jurisdictional mechanisms in court cases, and effectively break local protection.
(10) Promote the rapid handling of simple cases and disputes. Establish a focus on the market directory, and build rapid processing channels for administrative law enforcement, arbitration, mediation, etc. in key areas and links such as e-commerce platforms, exhibitions, professional markets, and import and export. Promote the e-commerce platform to establish effective use of patent evaluation reports to quickly dispose of utility model and design patent infringement complaint system. Guide all types of websites to regulate management, remove infringing content, block or disconnect pirated website links, stop the dissemination of infringing information, and crack down on the use of copyright litigation for speculative profit.
(11) Strengthen the construction of fast-protection institutions for intellectual property rights. A number of intellectual property protection centers will be set up in the advantageous industrial clusters to establish a rapid acceptance and scientific diversion mechanism, and provide a one-stop dispute resolution solution for rapid review, rapid confirmation, and rapid rights protection. Accelerate the examination, authorization, confirmation and rights protection procedures for patents, trademarks and new varieties of plants in key technical fields. Promote the use of mediation methods to quickly resolve disputes, and effectively link protection channels and links such as administrative law enforcement, judicial protection, and arbitration.
V. Improve foreign-related communication mechanisms, shape intellectual property rights and protect superior environment
(12) Make greater efforts to strengthen international cooperation. Actively carry out overseas patrol activities, hold round-table meetings, and strengthen cooperation and exchanges on intellectual property protection with relevant countries and organizations. Explore the establishment of special exhibition areas at important international exhibitions and carry out overseas tour exhibitions on China’s intellectual property protection achievements. Give full play to the important role of the intellectual property system in promoting the joint construction of the “Belt and Road”, support the joint efforts of the state to strengthen capacity building, and promote the sharing of patents and new plant variety review results. Make full use of various multi-bilateral dialogue cooperation mechanisms to strengthen exchange protection, cooperation and consultation on intellectual property protection. Comprehensively utilize various international exchange and cooperation platforms to actively promote the development achievements of China’s intellectual property protection.
(13) Improve communication channels with rights holders at home and abroad. Information exchanges with domestic and foreign industry associations, chambers of commerce, and social organizations will be strengthened through the holding of information communication meetings and corporate forums of embassies and consulates in China. Organize the briefing on the protection of intellectual property rights, timely inform the news media and the public about major issues and progress, increase trust and dispel doubts, and actively respond to the concerns of rights holders at home and abroad.
(14) Strengthening overseas rights assistance services. We will improve the early warning and prevention mechanism for overseas intellectual property disputes, strengthen the tracking of major cases, establish a dynamic tracking mechanism for changes in foreign intellectual property laws, and issue risk warning reports in a timely manner. Strengthen the construction of overseas information service platforms, conduct guidance on overseas intellectual property disputes, and establish a coordination mechanism for overseas disputes. Support various social organizations to carry out the construction of IPR foreign-related risk prevention and control systems. Encourage insurance institutions to carry out insurance business such as intellectual property rights overseas infringement liability insurance, patent enforcement insurance, and patent infringement loss insurance. Establish an overseas human rights expert advisory mechanism to effectively promote the equal protection of the legitimate rights and interests of rights holders in China.
(15) Improve coordination and information acquisition mechanisms. We will improve the foreign-related law enforcement cooperation mechanism, increase work coordination, and further strengthen the intellectual property rights of Chinese embassies and consulates abroad. Select overseas intellectual property observation enterprises and social organizations to establish an information communication mechanism. Improve information disclosure and emergency response mechanisms for major foreign-related intellectual property disputes. Organize the investigation of the status of overseas intellectual property protection of Chinese enterprises, study the establishment of a national protection status assessment mechanism, and promote the improvement of the overseas intellectual property protection environment of Chinese enterprises.
6. Strengthening the construction of basic conditions and supporting the protection of intellectual property rights
(16) Strengthen the construction of the basic platform. Establish and improve the National Intellectual Property Big Data Center and the Protection and Monitoring Information Network, and strengthen the statistical monitoring of information such as registration, examination and approval, dispute resolution, and major cases. Establish an integrated information coordination and information sharing mechanism for IPR enforcement information, increase information integration, and improve the level of comprehensive judgment and macro decision-making. Strengthen the construction of software and hardware for public service platforms such as rights protection assistance, report complaints, etc., enrich the platform functions, and improve the level of convenience and benefit for the people.
(17) Strengthen the construction of professional talents. Encourage local, departmental, educational institutions, industry associations, and societies to increase the training of professionals in intellectual property protection. Strengthen the administrative enforcement of intellectual property rights and the staffing and professionalization of the judicial team, and establish a mechanism to effectively encourage administrative law enforcement and the enthusiasm of judicial personnel to ensure a stable and orderly exchange of teams. Promote the professional construction of intellectual property criminal cases, and improve the efficiency of investigation, review and arrest, review and prosecution, trial work efficiency and case handling. In the relevant administrative departments and enterprises, the system of public lawyers, company lawyers and legal consultants was fully implemented to promote the rule of law in the management and protection of intellectual property rights. Give full play to the role of lawyers and other legal service teams, and do a good job in mediation of intellectual property disputes, case agency, and publicity of law. Establish and improve the selection, management, and incentive systems for intellectual property arbitration, mediation, notarization, and social supervision. Strengthen the training of professional personnel for intellectual property protection, and give full play to the role of various talents in the practice of safeguarding rights.
(18) Increase investment in resources and support. All departments in various regions should increase investment in intellectual property protection funds. Encourage mature areas to take the lead and try to build a demonstration zone for intellectual property protection and form a number of protected highlands. Promote the administrative enforcement of intellectual property rights and the modernization and intelligent construction of judicial equipment. Encourage enterprises to increase capital investment, and establish intellectual property protection rights and mutual funds through market-based methods to enhance their ability and level of self-defense.
7. Strengthen the implementation of the organization to ensure the implementation of tasks
(19) Strengthen organizational leadership. Comprehensively strengthen the party’s leadership in intellectual property protection work. All relevant parties should work in accordance with the division of functions, study specific policy measures, and jointly promote the construction of intellectual property protection systems. The State Intellectual Property Office shall, in conjunction with relevant departments, continuously improve the working mechanism, strengthen coordination and guidance, and supervise and inspect, ensure that all work requirements are effectively implemented, and major issues should be reported to the Party Central Committee and the State Council in a timely manner.
(20) Pay close attention to implementation. Local party committees and governments at all levels should fully implement the decision-making arrangements of the Party Central Committee and the State Council, implement the responsibility for territorial protection of intellectual property rights, and hold regular meetings of party committees or governments to study intellectual property protection, strengthen institutional mechanisms, formulate supporting measures, and implement personnel funds. It is necessary to incorporate the protection of intellectual property rights into the important agenda of local party committees and governments, and conduct regular assessments to ensure that all measures are in place.
(21) Strengthen assessment and evaluation. Establish and improve the evaluation system, and incorporate the performance of intellectual property protection into the local party committee and government performance appraisal and business environment evaluation system. Establish an annual social security protection social satisfaction survey system and a protection level assessment system. Improve the notification mechanism, and urge party committees and governments at all levels to increase the protection of intellectual property rights.
(22) Strengthen incentives and incentives. In accordance with relevant state regulations, the collectives and individuals who have made outstanding contributions to the protection of intellectual property rights shall be commended. Encourage governments at all levels to make full use of the existing reward system and strengthen recognition for advanced workers in intellectual property protection and outstanding social actors. Improve the incentive mechanism for infringement and counterfeiting, increase the incentives for reporting personnel, and stimulate the enthusiasm and initiative of the public to participate in intellectual property protection.
(23) Strengthen publicity and guidance. All localities and departments should strengthen public opinion guidance and regularly publicize typical cases with social influence, so that the concept of strengthening intellectual property protection is deeply rooted in the hearts of the people. Strengthen public welfare propaganda, carry out intellectual property protection into enterprises, enter units, enter the community, enter schools, enter the network and other activities, continuously improve the awareness of intellectual property protection of the whole society, especially the innovation and entrepreneurship, and promote the formation of a new era of intellectual property protection in the new era.