Key Points:

  • Compendium establishes wide framework for enhancing IP protection, enforcement and public awareness
  • Establishment of dedicated IP courts being considered

On June 5, 2008 the State Council promulgated the Compendium of China National Intellectual Property Strategy (“Compendium”), vowing to build China into a country with a comparatively higher level of intellectual property rights (“IPR”) creation, utilization, protection and administration by 2020. Within the next five years, China will take measures to dramatically raise its level of IP, ensure the effectiveness of IPR utilization, prominently improve IPR protection, and greatly enhance public awareness of IP and its important role in China’s trade and commerce.

The Compendium consists of five sections: a Foreword; Guideline and Strategic Goals; Strategic Emphasis; Tasks; and Strategic Measures.

Section III of the Compendium clarifies the strategic emphasis of the China National Intellectual Property Strategy: Paragraphs 5-10 state that the first strategic emphasis is to improve the system by completing the IP law enforcement and administrative system, further accomplishing IP laws and regulations and strengthening IP's guiding role in economic, cultural and public policies. The second emphasis is to take measures to promote IPR creation and utilization including guiding and supporting companies and other market entities in creating and utilizing IPRs in their fiscal, financial, investment and government-procurement policies and also within industrial, energy and environmental protection policies.

The third emphasis is to strengthen IP by means of enforcing judicial punishments imposed for IPR infringement and reducing the costs for protecting holders' rights to ensure that the social costs of enforcement are primarily borne by the infringers.

To enhance the prevention of IPR abuse, the State Council proposes additional laws and regulations to reasonably define IPR so as to maintain fair competition in the marketplace and to safeguard the public’s legal rights and interests. The government also intends to encourage a strategic emphasis on fostering IP culture by advocating innovation and honesty and discarding plagiarism, counterfeiting and cheating.

Section IV of the Compendium lists proposed tasks in the crucial areas of patents, trademarks, copyright, business secrets, new plant varieties and intellectual property in national defense programs; these tasks include nine specific strategic measures. For instance, China will improve policies relating to patent standards, on-duty invention systems and complete patent review and approval systems. With regard to trademarks, the Compendium aims to improve the efficiency of trademark review and approvals and to shorten the review and approval periods. In addition, the Compendium states that the government intends to take the lead in establishing trade secret management systems and in establishing measures to appropriately administer the relationship between trade secret protection and free employment.

The Compendium also proposes steps in the creation and protection of new plant varieties; the protection of intellectual property in sensitive areas such as geological signage, genetic resources, traditional knowledge, folk literature and art, and national defense IP; and promoting the efficient use of exclusive rights to integrated circuit layout-design and other areas.

Section V of the Compendium establishes strategic measures, including (a) elevating capacities for IPR creation, (b) encouraging IPR transformation and utilization, (c) accelerating an appropriate and efficient IP judicial system, (c) improving all levels of IP law-enforcement, (d) strengthening IP administration, (e) developing IP intermediary services, and (f) promoting the development of IP personnel and an IP culture and the expansion of international exchanges and cooperation in the IP sector.

The Compendium sets numerous specific objectives. For example, Paragraph 45 states that the government shall “explore the possibility of establishing specialized IP courts to deal with IP related civil, administrative and criminal cases.” This also raises the possibility of a central IP appeals court in Beijing; indeed, China will “study the need for appropriately centralizing jurisdiction to deal with IP cases that require highly technical knowledge, for example, in patent cases, and explore the possibility of establishing an appellate court specializing in IP appeals.”

The government will undertake measures to improve existing judicial interpretations and refine litigation procedures by establishing and accomplishing systems for ensuring availability of expert witnesses and for conducting technical investigations. Administration of IP will be strengthened via the promulgation and implementation of local and industrial IP strategies, the construction of a national basic IP information public service platform, the establishment of an IP early warning and emergency response systems, and the development of IP Intermediary services.