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Law enforcement requires more efforts

(Business Weekly)
Updated: 2006-03-23 13:58

Lawyer and patent attorney Zhang Shiqiong has been swamped with work lately, and there seems to be no end to the number of new cases that urgently need to be dealt with.

"It seems like it will never end," says Zhang, who works for Beijing-based Dequan Law Firm.

China's entry to the World Trade Organization (WTO) has fuelled a wave of patent infringement cases that have left lawyers throughout the country scrambling to cope with the unexpected deluge of work. Intellectual property rights (IPR) protection has become a pressing issue in China, which is why increasing numbers of enterprises have been coming to Zhang to represent them in patent disputes.

Over the past several years, the Chinese Government has made IPR protection a key priority. On February 23, Vice-Premier Wu Yi, head of the State IPR task force, called on enterprises to step up IPR protection efforts at a conference on patents and innovation.

The State Office of Intellectual Property Protection under the Ministry of Commerce and several related departments issued China's Action Plan on IPR Protection 2006 just last week. This strategy is the first comprehensive annual action plan formulated by the government, says an anonymous official at the State Office of Intellectual Property Protection.

The official adds this new approach is evidence of the Chinese Government's unwavering determination to enforce IPR protection. The strategy clearly defines China's roles and priorities in this area throughout 2006.

"It also provides a guideline for my job. Perhaps I will have more work this year," says Zhang.

The plan covers four broad areas of concern: trademarks, copyrights, patents and imports and exports. It also involves 11 government departments, including the Ministry of Public Security, Ministry of Commerce and State Intellectual Property Office (SIPO).

Key priorities include legislation, law enforcement, mechanism-building, training and education, international communication and co-operation, the promotion of self-disciplined business practices, services to right holders, and subject research.

"China has made rapid progress and noteworthy achievements in IPR law reform over the past several years. Compared to other laws, China's IPR regulations have reached international standards, which has made my work easier," says Zhang.

In 2001, around the time China was admitted into the WTO, the country comprehensively revised its laws and regulations related to IPR protection and their legal interpretation, in order to effectively protect valid patents.

"Although these laws are fairly comprehensive, some details still need to be clarified further," says Zhang. "Some ambiguity in the law has made our work somewhat difficult."

This year the Chinese Government will draft, formulate and revise 17 laws and regulations related to trademarks, copyrights, patents and customs protection, and will improve six judicial interpretations under the Action Plan.

Zhang says law enforcement is now the biggest area of concern, due to a disparity between the actual laws and the authorities' failure to enforce them sometimes.

"When I handle cases for my foreign clients, some of them worry about whether their rights can be protected by the authorities," says Zhang.

She emphasizes that copyright violators have continued to thrive simply because enforcement is still relatively lax and the penalties are not strict enough. This is why the Chinese Government has shifted its focus from legislation to administrative law enforcement, which has been improved through a combination of routine management and supervision augmented by special crackdown campaigns.

The government launched a special one-year nationwide IPR protection campaign in September 2004, but the initiative was later extended to the end of 2005. Through unified planning, government departments have investigated and dealt with a number of major IPR infringement cases, by focusing on the protection of trademark rights, copyrights, patent rights, on imported and exported goods, exhibitions and wholesale commodity markets, and on key places where counterfeiters are known to congregate. Quick action and strict law enforcement succeeded in dealing a blow to IPR offenders.

The Action Plan states that IPR law enforcement efforts this year will include seven dedicated campaigns, including curiously named initiatives such as "Mountain Eagle", "Sunshine" and "Blue Sky", plus eight regular enforcement programmes and 20 specific measures.

Zhang says the government needs to improve law enforcement by introducing more measures to raise awareness of IPR protection. She adds that many domestic enterprises, particularly private companies, do not clearly understand the importance of IPR protection. They tend to ignore their own patents and have little concept of patent infringement.

"Some of my clients think IPR protection is not essential to their business. They only come to me urgently when they're facing a lawsuit. But most foreign companies have good IPR protection mechanisms, and they're always very aware of the importance of their patents."

This disparity is largely due to the relatively short, 20-year history of IPR protection in China. Countries such as the United States and Great Britain have more than a century of experience in this field.

The situation is changing, however, and a growing number of domestic enterprises have become familiar with IPR over the past several years. The SIPO received 476,264 domestic and foreign patent applications last year, up 34.6 per cent from 2004. Many of the domestic applicants were private businesses.

"IPR protection is not only important to companies. Everyone should strengthen their awareness of IPR," says Zhang.

In 2004, the State designated the week of April 20 to 26 as an annual event to promote the importance of IPR protection. This initiative has used newspapers, TV programmes and the Internet to educate the general public about IPR issues. The Action Plan states that seven approaches and 39 measures will be adopted this year to raise public awareness of IPR protection.

The country has also started launching courses on IPR protection in primary schools. Primary and middle schools in Nanhai, in South China's Guangdong Province, were the first in the country to teach IPR issues.

Other places such as Beijing, Shanghai, Tianjin and East China's Jiangsu Province have since followed suit. Regional economic powerhouse Jiangsu, for example, has incorporated IPR protection into its primary and middle school curricula throughout the 2006 to 2010 period. The province will also train more than 100,000 IPR protection professionals during this period.

IPR education is closely associated with scientific and technological innovation, and has become a hot topic among officials in the annual sessions of the Tenth National People's Congress (NPC) and the Tenth Chinese People's Political Consultative Conference (CPPCC).

"IPR protection is a global issue, and we need to work with other countries on it," says Zhang.

This year, 21 IPR training programmes will be organized under the Project of Training Thousands of IPR Personnel. This initiative will focus on international IPR-related exchanges and co-operation on legislation, trademarks, copyrights, patents and customs protection. Seven of these 19 exchanges will be between China and the United States.