New great progress in IPR protection in China

Under the leadership of the CPC Central Committee and the State Council, China has made huge achievements in its IP cause in recent years in areas of legal system and law-enforcement system construction.

I. IP Legal System Keeps Improving

Starting 1980s, China has successively promulgated many laws and regulations of IPR protection such as Trademark Law of the People's Republic of China, Patent Law of the People's Republic of China, Copyright Law of the People's Republic of China, Regulations for the Protection of Computer Software, Regulations for the Protection of Layout-Design of Integrated Circuits, Regulations of the People's Republic of China on the Protection of New Varieties of Plants, Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights, Regulations on the Administration of Special Signs and Regulations on the Protection of Olympic Symbols, and has issued a series of related implementation rules and judicial interpretations, constantly improving the laws and regulations of IPR protection in China.

In order to pragmatically and effectively protect IPRs, China fully revised its laws, regulations and judicial interpretations related to IPR protection during the period around the country's entry to the World Trade Organization (WTO) in 2001. While highlighting the promotion of scientific and technological progress and innovation in the aspects of legislation spirit, right coverage, protection levels and legal remedies, China also made its laws, regulations and judicial interpretations conform to WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and other international rules related to IPR protection, initially establishing its IP legal system with comparatively complete categories and in line with rules applicable worldwide and China's national situations.

In recent years, China accelerated its process of revising Patent Law, Trademark Law and Law Against Unfair Competition and formulated and revised a series of administrative regulations and judicial interpretations according to situation development and real demands, increasing the maneuverability of these laws and regulations. In 2004 and 2006, the State Council formulated Collective Management of Copyright Regulations and Regulation on the Protection of the Right to Network Dissemination of Information respectively, further standardizing the collective management of copyrights and expanding the protection scope of copyright; the Supreme People's Court and the Supreme People's Procuratorate issued the Interpretations on Some Issues Concerning Specific Law Application in Handling Criminal Cases of IPR Infringement twice in 2004 and 2007, and greatly lowered the threshold of criminal responsibility and increasing the efforts of cracking down on such cases.

In 2005, the third modification of the Patent Law was formally launched. State Intellectual Property Office (SIPO) of China organized experts to specially research the modification work and formulated the Modification Draft of Patent Law of the People's Republic of China (to be approved), which was submitted to the State Council for examination and discussion on December 27, 2006. In January this year, the modification work of Patent Law was listed into the legislation working plan of the State Council of 2008 as a project to be completed within the year. Currently, the State Council is examining and discussing the modification draft of the Patent Law. The modified draft of Patent Law (to be approved) mainly covers: suggesting raising the norms of granting patent rights through upgrading "relative novelty" into "absolute novelty", adding requirements like "inventive step" to the conditions of granting patents of design, improving the existing search report system for patent of utility model, adding the prescriptions in principle related to the execution of common rights into the Patent Law, stipulating not to grant patent rights to the inventions made from illegally acquired Chinese genetic resources, further clarifying the accounting methods of right infringement compensation, confirming measures of evidence preservation before lawsuits, adding stipulations of compulsory license to resolve the problems related to public health, and prior art defense, introducing experimental use exceptions in medicine and medical devises sectors, canceling the appointment of foreign-related patent agencies, requiring creations and inventions completed in China gaining approvals from SIPO before applying patents in foreign countries, and so on.

Local governments also made outstanding achievements in formulating and implementing local laws and regulations in recent years. For example, Chongqing Municipality issued Statute of Chongqing Municipality on Patent Encouragement and Protection; Beijing promulgated Measures of Beijing Municipality on Rewarding Invention Patents and Measures of Beijing Municipality on Protection IPRs in Exhibitions. The promulgation of these statutes and measures greatly promoted the launch of local IP works. By the end of 2007, a total of 23 provinces, municipalities and autonomous regions and 11 prefectural-level cities had published patent protection and encouragement regulations, making beneficial complementation to Patent Law and its implementation rules and further perfecting IP legal system.

China also actively participates in some major international conventions and treaties of IPR protection. After China entered in the World Intellectual Property Organization (WIPO) in 1981, the country joined in succession in more than 10 international conventions, treaties, agreements and protocols, such as the Paris Convention on the Protection of Industrial Property, Patent Cooperation Treaty, Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Locarno Agreement Establishing an International Classification for Industrial Designs, Madrid Agreement Concerning the International Registration of Marks, Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks, Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, Agreement on Trade-related Aspects of Intellectual Property Rights, International Convention for the Protection of New Varieties of Plants, Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention, and Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication. In 2006, China signed WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, further strengthening its efforts of protecting internet copyrights; in 2007, China approved the Protocol on Revising the Agreement on Trade-Related Aspects of Intellectual Property Rights.

II. IP Law-Enforcement System Maintains Gradual Improvement

In the practice of IPR protection, China established the IPR protection mode consisting of two parallel channels of administrative protection and judicial protection. In China, several departments have the function of protecting IPRs, mainly SIPO, State Administration for Industry and Commerce, General Administration of Press and Publication, Ministry of Culture, Ministry of Agriculture, State Forestry Administration, Ministry of Public Security, General Administration of Customs, Supreme People's Court and Supreme People's Procuratorate. For many years, these departments have done outstanding works in their respective areas. In order to further strengthen IPR protection, China established the State Office of Intellectual Property Protection, headed by a vice premier in 2004 to coordinate IPR protection nationwide.

In recent years, China intensifies the working coordination between administrative law-enforcement departments and public security organs and people's procuratorates in IPR protection. In October 2000, related departments jointly issued the Circular on Strengthening Coordination and Cooperation in the Work of Handling Lawbreaking and Criminal Cases of IPR Infringements, making clear stipulations on the questions of coordination and cooperation in handling criminal cases of IPR infringement. In July 2001, the State Council issued the Provisions for Administrative Law-Enforcement Departments to Transfer Suspected Criminal Cases, making clear stipulation for administrative law-enforcement departments to transfer suspected criminal cases to public security organs. In March 2004, related departments also jointly released the Opinion on Strengthening Working Contacts Between Administrative Law-Enforcement Departments and Public Security Organs and People's Procuratorates, initially establishing the working mechanism dovetailing administrative law enforcement and criminal law enforcement. Thus, different departments can make joint efforts to fight against lawbreakers and criminals of IPR infringement to effectively ensure suspected criminal cases to timely enter criminal judicial procedure.

The collaboration in law enforcement among departments and regions becomes closer in recent years. Customs have established special IPR protection organs, initially forming the three-level IP law-enforcement system of the "General Administration of Customs -- directly subordinate customs -- subordinate customs"; courts also intensify their efforts in trying IP-related cases. Various higher people's courts, many intermediate courts and some grassroots courts with jurisdictions of trying IP-related civil cases totally established 172 special IP tribunals. Administrations for industry and commerce, administrations of press and publications and intellectual property administrations and other competent departments have established regular joint meeting system with public security departments according to the Opinions Concerning Transferring Suspected Criminal Cases During Administrative Law Enforcement. The Supreme People's Procuratorate also established the special supervision mechanism of placing criminal cases related to manufacturing and selling fakes and violating IPRs on file for investigation and prosecution, which promotes the dovetailing of administrative law enforcement and criminal judicature. Cross-regional law-enforcement coordination mechanism is being gradually established, ensuring the effective investigation into cross-regional IPR-infringement cases. Meanwhile, regions like the Yangtze River Delta, Pan-Pearl River Delta, Bohai Rim and the 10 provinces and municipalities in central-south China also established regional collaboration mechanism in IP law enforcement. Guangdong Province and Hong Kong have set up Guangdong-Hong Kong Expert Group on the Protection of Intellectual Property Rights.

Related departments recently launched rectification actions in a centralized manner, like "Blue Sky Action," "Mountain Eagle Action" and "Daily Action Against Piracy," and law-enforcement actions such as "Thunder Storm Action" and "Sky Net Action," severely cracking down on the lawbreakers and criminals who infringed IPRs, effectively restraining the rampant impetus of right infringement and piracy, energetically protecting the legal rights and interests of right holders and maintaining an equal market economic order. For more than 20 years, the people's courts and IP administrations of various levels have dealt with a large amount of IP cases. From 1985 to 2007, local courts throughout China totally handled 115,000 first instance IP civil cases and concluded the investigation of more than 111,000 of them; during the period from 1987 to 2007, the numbers of IP administrative cases handled and concluded by courts nationwide reached 4,675 and 4,613 respectively; from 2003 to 2007, local IP administrations totally handled 6,427 cases of patent disputes, and dealt with 919 cases of counterfeit patents and 8,152 cases of faking others' patents . All the efforts effectively protect the legal rights and interests of IPR holders at home and abroad and have created sound market environment for fair and orderly competition, greatly increasing the confidence of domestic and foreign investors.