Intellectual Property Rights in China. Zhenqing Zhang
country and strengthen our enterprises’ ability to absorb new achievements in our country’s scientific research. In the implementation of Chinese patent policy, we should change the past practice of using the achievements of scientific research for free and guide the science and technology sector from research labs to factories, rural areas, and various corners of our motherland. We should open the gate for our science and technology professionals to the main battlefield of economic modernization.29
When Song Jian made that comment, the host organization of the SPB had already shifted from the SSTC to the SEC. Although it was odd for Song Jian, then SSTC director, to comment on the work of the Chinese SPB, an organization that was no longer under his jurisdiction, his comment did not seem to have offended the leadership of Chinese patent policy. Huang Kunxi, then SPB general director, echoed Song Jian’s comments in an article published later in 1986. According to Huang,
The implementation of Chinese patent law is bound to provide strong motivation for our country’s science and technological development since it effectively combines the need for economic development with legal practice. The purpose of our work is to coordinate the relationship between the owners of the inventions and their users…. There are millions of industrial enterprises, thousands of research institutes, and hundreds of research universities in our country. They are going to produce inventions and utilize inventions as well. At the same time, millions of farmers also need to utilize scientific invention and technological innovation. It is therefore important to create conducive conditions for the technological innovations to be applied and turned into concrete productive forces as early as possible. Our patent work should serve that purpose.30
The opinions of Song Jian and Huang Kunyi demonstrate how Chinese patent work was influenced by the general context of Chinese economic reforms. From 1980 to 1998, the SPB shifted from one host organization to another and went through four general directors, but the general goal of Chinese patent work remained unchanged. Shortly after the Chinese SPB was renamed SIPO in 1998, the newly appointed SIPO general director, Jiang Ying, reiterated this goal in an article published in People’s Daily, the mouthpiece of the Chinese Communist Party. According to her,
The twenty-first century is an age of knowledge economy. Our main task is to effectively utilize our IPR system and promote the production and dissemination of knowledge…. The development of new technology is increasingly gaining pace in the new era. Our work on IPR protection should be adjusted to that new development. We should study the relationship between IPR and knowledge economy in an in-depth manner. That is the requirement of our country’s economic development.31
Jiang Ying’s successors, Wang Jingchuan and Tian Lipu, inherited the rationale elaborated in her article. As China became more deeply involved in the global IPR regime in the late 1990s, the Chinese State Council entrusted SIPO with a more complete set of functions as a vice-ministerial-level organization. Those functions included (1) designing laws and regulations related to patent work and preparing patent legislation; (2) coordinating IPR affairs related to foreign countries, including negotiating with foreign countries and other relevant government ministries and studying the trends of the development of international IPR affairs; (3) organizing and designing development plans for a patent information exchange nationwide; (4) designing the standard for patent validation and infringement and providing professional guidance to local patent bureaus to solve patent disputes and punish patent violations; and (5) educating and training IPR professionals and advocating for patent laws and other regulations.32
SIPO was established at a time when China was becoming profoundly integrated into the global economy with its entry in the World Trade Organization (WTO). In the early twenty-first century, Chinese top leadership repeatedly emphasized the importance of technological innovation in the process of upgrading the country’s industrial sector and urged the Chinese patent system to play an important role in that grand enterprise. In 2004, former Chinese president Hu Jintao put forward for the first time the notion of “building an innovative country” in an official speech.33 In 2008, China elevated intellectual property rights to the level of national strategy and adopted the Outline of the National Intellectual Property Rights Strategy, known as the 2008 Outline. The 2008 Outline reaffirmed the goal of building China into an “innovative country” by 2020. To that end, China aimed to “significantly improve the level of independent innovation, further enhance the ability of IPR application to produce knowledge-intensive products, markedly reduce the cost of IPR protection and crack down IPR infringement.”34 It is noteworthy that the 2008 Outline, like other official IPR policy documents, did not downgrade the importance of IPR protection but rather prioritized it lower than IPR creation and application in Chinese IPR work. Leadership speeches and official documents cited above represent the thinking of Chinese patent policy designers. That is, while some scholars focused on patent enforcement, the designers of Chinese patent policy were more interested in how patent enforcement could serve the purpose of transforming science and technology into being the primary engine for the country’s economic development. This tendency is also represented in the operation of IPOs at the regional level.
Regional patent bureau/IPOs were being established in the 1980s. As of 2010, all thirty-one provinces/municipalities in China had established a provincial/municipal IPO. Among the provincial/municipal IPOs, nine are at the bureau level (tingji) (Beijing, Tianjin, Shanghai, Guangdong, Guizhou, Shanxi, Hunan, Sichuan, and Inner Mongolia), nineteen are at the vice bureau level (futingji) (Liaoning, Yunnan, Hebei, Heilongjiang, Jiangsu, Hubei, Ningxia, Xinjiang, Fujian, Jiangxi, Anhui, Shandong, Henan, Chongqing, Jilin, Gansu, Zhejiang, Guangxi, and Hainan), and three are at the section level (chuji) (Shaanxi, Qinghai, and Tibet). The IPOs covered the city/prefecture level in twenty-three provinces and reached the county level in thirteen provinces.35 It is generally agreed that the subnational IPOs have a dependent relationship with the Science and Technology Bureau in their respective provinces. There are also varied budgetary and personnel allocations (bianzhi) of the subnational IPOs from one locality to another. Some of them are quite strong and others weak. This coincides with the personnel and budgetary allocations in different provinces/municipalities. The Henan Provincial IPO, for example, only had twenty-five full-time staff when it was established in 2000.36 In China’s capital, Beijing, however, the Beijing municipal IPO had forty-two full-time staff when it was established in 2002.37 Scholars also noted that a significant proportion of the staff of the local IPOs come from the Science and Technology Bureau. When the needs for patent enforcement arise, IPOs have to resort to the local Administration for Industry and Commerce (AIC) and Quality and Technology Supervision Bureau (QTSB) for additional help.38
A natural question thus arises: under what conditions will the regional IPOs persuade the AIC and QTSB to provide them with necessary help for patent enforcement? The short answer to this question is when the IPOs can convince the AIC and QTSB that patent protection helps to promote local economic development. As indicated by a closer examination of IPO functions, enforcing patent laws is only part of their duties. After the establishment of a complete set of IPR tribunal systems around China in the 1990s, the enforcement function was gradually outsourced to the IPR courts, with the emphasis of the patent bureau/IPOs shifting to the management of patent affairs. Like their counterparts at the central level, the regional IPOs serve to design the regional patent regulations, coordinate the implementation of the intellectual property rights strategy and foreign-related IPR affairs, disseminate patents to enhance the economic development of the area under its jurisdiction, and deliver patent protection through administrative means.39 Also, like their counterparts at the central level, the regional IPOs never downgraded the importance of patent protection. In practice, however, the development of scientific capacity takes precedence over the enforcement of patent laws. During my research trip to Changxi, an IPR official cited a piece of informal evidence corroborating this. He noted that there are several vice bureau chiefs in the city’s IPO, and when the bureau chief and vice bureau chiefs take group photos on formal occasions, the vice bureau chief in charge of the patent industry always appears on the right side of the vice bureau chief in charge of patent protection, with the bureau chief in the middle. Due to the lack of institutionalization in Chinese politics, the order that the officials appear in group photos is an important indicator of bureaucratic hierarchy.40 It is, therefore,