The establishment of the WTO marked the perfection of international laws on the protection of intellectual property rights. On January 1, 1995, the WTO set up the Intellectual Property Rights Council, a special branch in charge of the Trade-related aspects of intellectual property (hereafter referred to as TRIPS) which is a part of the WTO. TRIPS aimed at the promotion of technology revolution, transference and spread through the protection and exertion of intellectual property; the promotion of mutually beneficial relationship between the manufacturers and the users of technology and knowledge in a way conducive to social and economical welfares; and the promotion of the balance of rights and obligations among the members of the WTO. The foreword of TRIPS clearly stated that the purpose and tenet of contracting the agreement are to diminish the distortion of and barrier to the international trade, to promote a more sufficient and more effective worldwide protection of the intellectual property, and to ensure the implementation of intellectual property and its procedures would form no barrier to legal trade.
As China has entered the post-transitional period after its accession to the WTO, the issue of intellectual property becomes the focus of attention again. In 2004, Shanghai Municipal Government, in accordance with the uniform arrangement of the Central Government and by taking the appeals of enterprises and the actual situation in Shanghai into consideration, created favorable environment for the development of the enterprises by further improving relative laws and regulations and judicatory protection system, strengthening law enforcement, punishing tortious deeds and enhancing the awareness of intellectual property protection of the whole society.
I. China¡¯s Implementation of Its Commitments of Protecting Intellectual property after Its Accession to WTO
1. Adjustment and amendment of the laws and regulations relative to the protection of intellectual property
China¡¯s intellectual property legislation was generally in conformity with the TRIPS. To be consistent with the TRIPS, China had further amended its Patent Law and completed the making of Copyright Law and Trademark Law before its accession to the WTO, to revise the relative detailed rules of implementation covering various fields of the TRIPS and to implement in full-scale the TRIPS.
2. Offering national treatment and most-favored-nation clause to nationals of other countries
China¡¯s protection of foreigner¡¯s intellectual property will be in accordance with the agreement signed between China and that foreign country, or with any universal convention of which both countries are contracting countries, or with the mutual-beneficial principles. China promised to amend relative laws, regulations and other measures to ensure that the national treatment and most-favored-nation clause the foreign right-holder enjoys in all fields of intellectual property are in sync with the TRIPS, which includes that local copyright bureaus no longer need authorization from the National Copyright Bureau in Beijing when carrying out law enforcement concerning foreign right-holder.
3.Copyright protection
China promised to amend its copyright system, including the ¡°Implementation Regulations of Copyright Law¡± and the ¡°Regulations on the Implementation of International Copyright Agreement¡±, in order to ensure that China¡¯s copyright system is in sync with China¡¯s obligations as required by the TRIPS.
The amended ¡°Copyright Law¡± will definitude the paying system for broadcasting institution to use record products, the right to lease computer programme and film works, the right of mechanical performance, the right to spread to the public and the relative protective measures, database collection protection, temporary measures, the elevation of the sum of legal compensation and measures to strengthen anti-tortious efforts.
4.Trademark (including the protection of service trademark)
The amendment of ¡°Trademark Law¡± will focus on the following aspects: to add regulations on registering three-dimensional signs, color combination, letters and figures as trademark; collective trademark and certification trademark (including geographical indication); the introduction of the protection of official signs; the protection of famous trademarks; to add items on priority; amendment of the present trademark right-confirmation system and offering the interested parties in trademark right-confirmation opportunities to seek judicial review; crushing down any severe tortious act; and the perfection of trademark right-violation redress system.
5. Geographical indication (including protection of names of place of origin)
China promised to keep to the regulations of the TRIPS on the protection of geographical indication.
6.Patent right
£¨1£© Not to grant patent to any invention that violates social morality
China promised that the amended ¡°Detailed Rules on the Implementation of Patent Law¡± will be in sync with the regulation of Article 27, Clause 2 of the TRIPS, which regulates that all member countries can refuse to grant patent to certain invention of product or method so long as the commercial development of which may cause serious damage to public order or public morality, or life, health and environment of human being, animals and plants.
£¨2£© The compulsory license of patent
China has amended the ¡°Implementation Regulations of Patent Law¡± to ensure that: 1) under special conditions, license is granted without the authorization of the patentee to use (including the use by the government or authorization for other people¡¯s use) certain patent, which is called compulsory license or involuntary license; 2) due fees are paid to patentee when compulsory license occurs; 3) the target of such compulsory license shall mainly be China¡¯s domestic market; 4) if the subject of such compulsory license concerns semiconductor technology, then the range and time of use shall be limited as public and non-commercial use, or as compensation for competition restrictive deeds affirmed by judicial or administrative authorities.
7.Protection of the unpublicized data of medicine and agricultural chemicals using new chemical components
To prevent unfair commercial utilization, China has provided effective protection for the unpublicized experimental data or other data of medicine and agricultural chemicals using new chemical components required for the application of sales license, except that the disclosure of such data may be necessary for the protection of public interest, or precautions have already been taken to prevent such data from unfair commercial utilization. Such protection includes the following measures: to ensure, by adopting and making laws and regulations, that, at least within 6 years counted from the date on which Chinese government granted sales license to the data-provider, except the data-provider, no one shall, without the permission of the data-provider, apply for product sales license on the basis of such data; during this period, for any second applier of the sales license, can only be granted the sales license when his own data were submitted; all medicine and agricultural chemicals using new chemical components can get such data protection, whether it is patent-protected or not.
8. Measures on the control of intellectual property abuse
China will keep to the obligation of controlling competition restrictive deeds in license contract as regulated by the TRIPS, especially the requirement of negotiating with other member countries. Such regulations shall be applied to all intellectual property.
9. Combating infringement of intellectual property
China has made sincere efforts in combating piracy. On the judicial side, courts at all levels attach great importance to the hearing of intellectual property cases. On the administrative side, administrative departments at all levels lay great emphasis on anti-piracy work. Besides, the administrative departments in charge have also strengthened law publication and the education of the public to ensure that China¡¯s legal environment can meet the requirements of implementing the TRIPS.
10. Civil procedure and relative measures
China promised to, in accordance with the judicial principles in civil action, effectively implement fair and sound civil procedure and the onus of proof from both parties as regulated by the TRIPS.
China promised to amend relative detailed rules of implementation, in order to make the compensation that the pirate pays to the right-holder enough to cover the loss of the right-holder from such piracy, under the condition that the pirate obtains or should have obtained the knowledge that his act is an infringement of other people¡¯s intellectual property right.
11. The temporary measures taken by the judicial branch of the government
China promised that the implementation of the regulation by Article 61 of ¡°patent law¡± will be in consistence with the regulation of the TRIPS. As regulated by Article 61 of ¡°patent law¡±, if the patentee or any interested party has the proof that other people is infringing or will infringe his patent, and irreparable damage may result if such infringement is not stopped in time, he may, before prosecuting the infringement, apply to the people¡¯s court for an order to stop the concerned act and measures for attachment. The temporary measures taken by the judicial department will be carried out in sync with the relative temporary measures regulated by the TRIPS. The definition of ¡°reasonable proof¡± is ¡°any proof that can be obtained through reasonable means, which can enable the judicial branch to have sufficient certainty to make sure that the applicant is the patentee, and the rights of the patentee are being infringed or about to be infringed, and the judicial branch has the right to demand the patentee to offer enough caution money or equal guarantee to protect the accused or prevent the judicial measures be abused.¡±
12. Measures of administrative penalty
China promised to further strengthen its efforts in law enforcement, including to take more effective measures of administrative penalty. The concerned departments, including the National Administration for Industry and Commerce, the National Administration for Quality Supervision, Inspection and Quarantine and the National Copyright Bureau, will be encouraged to exercise such administrative power as searching, confiscating and attaching such proof of infringement as cargo in stock and documents.
The administrative responsibility institution will have, and be encouraged to use, the power to carry into execution sufficient penalty to prevent or frighten further infringement. Certain cases, including those involving repeat offending and intentional pirate and counterfeit, will be transferred to the concerned responsibility institution and be accused according to the criminal law.
13. The Custom¡¯s protective measures on intellectual property
China will provide the intellectual property right-holder with relative frontier procedures in sync with the relative regulations of the TRIPS.
The relative regulations of the TRIPS includes: each contracting country shall make relative procedures according to relative regulations, permitting the right-holder, when having just reasons to suspect there might be counterfeit trademark or pirate good imported, to submit a request in written form to proper judicial department or administrative department, which requires the Custom to suspend releasing such goods into free circulation. The TRIPS also regulates other measures to observe when invoking aforementioned procedures. These measures include application, guaranty money or equal guarantee, the notice of release suspension, the duration of release suspension, the compensation to the importer and the owner of the goods, the right to inspect and to acquire information, in-duty act, relief, minim import, etc.
14. Criminal action
The administrative responsibility institutions in China will propose the judicial branch to take necessary adjustment, lower the currently applying standard of infringement sum to take a criminal action so that the criminal action may effectively frighten the subsequent pirate and counterfeit act. Ever since China¡¯s accession to the TRIPS, China will apply comprehensively the regulations in the TRIPS.
I. Laws, regulations and the time of implementation or becoming effective
£¨1£© The Copyright Law of People¡¯s Republic of China, the same time as China¡¯s accession to the TRIPS
£¨2£© The Implementation Regulations of Copyright Law of People¡¯s Republic of China, the same time as China¡¯s accession to the TRIPS
£¨3£© The Protection Regulations of Computer Software, the same time as China¡¯s accession to the TRIPS
£¨4£© The Trademark Law of People¡¯s Republic of China, the same time as China¡¯s accession to the TRIPS
£¨5£© The Implementation Regulations of Trademark Law of People¡¯s Republic of China, the same time as China¡¯s accession to the TRIPS.
£¨6£© The Protection Regulations on New Varieties of Plant of People¡¯s Republic of China, brought into effect on October 1, 1997.
£¨7£© The Anti-Monopolistic Competition Law of People¡¯s Republic of China, implemented on Dec 1, 1993.
£¨8£© The Protection Regulations on Layout of Integrated Circuit of People¡¯s Republic of China, brought into effect on October 10, 2001.
II. Department regulations and the time of implementation or avoidance
£¨1£© The Temporary Regulations on the Patent Administration of Agriculture, Stockbreeding and Fishery, avoided at the accession to the TRIPS.
£¨2£© The Notification on the ¡°Tentative Regulations on the Protection of the Copyright of Books and Periodicals¡±, avoided at the accession to the TRIPS.
£¨3£© The Notification on the Issuance of ¡°Implementation Regulations of Tentative Regulations on the Protection of the Copyright of Books and Periodicals¡±, ¡°Contract for the Publication of a Book with a Writer, Compiler, or Translator¡±, and ¡°Publishing Contract¡±, avoided at the accession to the TRIPS.
£¨4£© The Interpretation on Article 15, Clause 4 of the ¡°Tentative Regulations on the Protection of the Copyright of Books and Periodicals¡±, avoided at the accession to the TRIPS.
1,The Regulations on the Protection of Patent of Shanghai
To strengthen the protection of patent is both for the fulfillment of the promises that Chinese government made when entering WTO, and for the enhancing of the city¡¯s comprehensive competitive force. Therefore, the People¡¯s Congress of Shanghai, according to the regulations of such relative laws and regulations as ¡°Patent Law¡± and ¡°Implementation Regulations of Patent Law¡±, approved ¡°Regulations on the Protection of Patent of Shanghai¡± (hereafter referred to as ¡°the Regulations¡±) at the 35th Session of the Standing Committee of the Eleventh People¡¯s Congress of Shanghai on December 28, 2001. Based upon the actual situation in Shanghai and focused on the protection of patent, the Regulations have made specific prescription on the following matters: subjects such as government departments, trade unions, enterprises and institutional units and patent intermediaries; technology innovation; production and operation; import and export of technology; the disposal and mediation of patent disputes; the regulation of the market, etc. The Regulations have played an important role in such aspects as guiding the enterprises and institutional units to participate in the competition of international market by making full use of legal tools; supervising the administrative departments to perform their duties in conformity with the law; strengthening patent management and the administrative protection of patent; creating in the whole society an atmosphere of respecting other people¡¯s patent and protecting independent patent.
The Regulations have clearly defined not only the authority of the patent administration department of the districts and the counties, thus having provided legal basis for the construction of the intellectual property bureau at district and county level and the exercise of their function; but also the scope of patent retrieval, thus having avoided the redundant research on government-sponsored or government-awarded projects, the waste of outlay, or patent infringement. The Regulations have also regulated the relative departments performing patent retrieval on their establishment of administrative system and have made measures on the protection of intellectual property in conferences and exhibitions.
The making of the Regulations has filled a gap in Shanghai¡¯s local patent laws and regulations. Efforts made to publicize and implement the Regulations have yielded substantial outcome. At the beginning of 2002, 19 districts and counties of Shanghai established their intellectual property bureau, which have, during the past two years, played a major role in Shanghai¡¯s patent work by making such effective efforts such as offering enterprises instructions in carrying out patent-related works, making policies and measures, promoting publicity and training, providing information service, strengthening inspection and law enforcement.
To better carry out the administrative law enforcement of patent, the municipal intellectual property bureau has made, based upon the Regulations, the ¡°Regulations on Dealing with Patent Dispute of Shanghai¡± and ¡°Regulations on Mediation of Patent Dispute of Shanghai¡±, trained a group of patent administrative law enforcement personnel, proposed the setting up of inter-provincial cooperative mechanism for patent administrative law enforcement. The implementation of the Regulations has played a significant role in promoting the sustainable development of Shanghai¡¯s economy and society.
2, ¡°Some Opinions on Further Strengthening Shanghai¡¯s Intellectual property Work¡±
In July, 2003, Shanghai Municipal Government issued ¡°Some Opinions on Further Strengthening Shanghai¡¯s Intellectual property Work¡±. The ¡°Opinions¡± have made clear such important elements as the guiding principle, target of development, direction of work and policies and measures in further strengthening the intellectual property work. It includes 6 aspects and 23 opinions and measures. The 6 aspects are: focusing on the intellectual property work of the enterprises and enhancing their core competitive force; focusing on the intellectual property work of the colleges and research institutions, accelerating the fostering of intellectual property personnel; creating a better environment for the protection of intellectual property, enhancing the awareness of intellectual property of the whole society; constructing a shared platform of information service, building a highland of intellectual property; completing the service system of intellectual property, expanding the service market of intellectual property; perfecting the administrative system of intellectual property, innovating the coordinative institution for intellectual property work. The issuance of the ¡°Opinions¡± has ignited the enthusiasm of the inventers, promoted the intellectual property work in Shanghai and enhanced the core competitive force of the enterprises. Today, all the relative departments are making their respective efforts in putting into effect the various measures of the ¡°Opinions¡±, creating a better environment for the protection of intellectual property, innovating the stimulation mechanism, promoting the industrialization of patented technology, bringing into full play the service function of intellectual property work in revitalizing the city through science and education.
3, ¡°The Outline of Shanghai¡¯s Intellectual property Strategy¡±
¡°The Outline of Shanghai¡¯s Intellectual property Strategy¡± was issued in September 2004, which was the first formally issued local outline of intellectual property strategy in China. The ¡°Outline¡± confirmed the general target of Shanghai¡¯s intellectual property work: grasping the chance of Shanghai¡¯s as well as China¡¯s holding the 2010 World Exposition and Shanghai¡¯s adoption of science and education as the key strategy of city revitalization, and with 7 years¡¯ efforts, to set up step by step a scientific and effective mechanism of intellectual property work which can meet the requirement of the socialist market economy system and accords with the rules of market economy and international practice, to form a preliminary innovation system of intellectual property backed by the talent highland, to continuously improve the parallel intellectual property protection system by combining the administrative forces and judicial forces, to establish a public service system of intellectual property which can be utilized by the whole society, and to build Shanghai into an international metropolis with great vigor of innovation, complete market of element of production, smooth channels of translation, powerful protection of intellectual property, abundant intellectual property personnel and perfect operational system of intellectual property.
The ¡°Outline¡± also specified the major branches of the target:
Patent: The amount of application and authorization of patent shall keep step with the growth of Shanghai¡¯s GDP. Till 2010, the authorized patent of invent per million people shall reach 150. Shanghai shall go on keeping its leading position in China, and shall have core technology and independent intellectual property in some key fields and some fronts of science and technology.
From January to November, the amount of application for patent in China reaches 148149, among which patent of invention reaches 58405, utility model 100387, design 89357. The amount of duty patent application reaches 98639, accounting for 39.7% of the total sum, non-duty patent application reaches 149510, accounting for 60.3% of the total sum. The respective percentages of invention, utility model and design in the total number of application are 24%, 40% and 36%.
From January to November, the amount of application for patent in Shanghai reaches 18104 (with a year-on-year drop of 10.4% compared with that of 2003, ranking 4th in China), among which patent of invention reaches 6103, with a year-on-year growth of 14.2%; utility model 5555, with a year-on-year growth of 0.3%; design 6446, with a year-on-year drop of 30.8%. Due to the sharp drop of design, the total amount of patent application of Shanghai suffered a year-on-year decrease. The respective percentages of invention, utility model and design in the total number of application in Shanghai are 34%, 31% and 35%.
During the same period, the amount of duty patent application reaches 14342, accounting for 79.2% of the total sum, while non-duty patent application only accounts for 20.8% of the total sum. The ratio between duty application and non-duty application is 40:60. Among all the duty applications, 2031 are from universities and colleges, accounting for 14.2%; 938 are from research institutions, accounting for 6.5%; 11177 are from enterprises, accounting for 77.9%. From which we can see that patent applications from enterprises constitute a major part of the total number of Shanghai. Besides, patent applications from universities and colleges, which are the main subject of knowledge innovation, have undergone a rapid growth with a year-on-year increase of 29.4%, ranking first in China.
Trademark: Till 2010, the effective domestic registered trademark from Shanghai enterprises shall reach 150,000, the number of registered trademark per million people shall reach 8000. Famous trademarks¡¯ influence on the public and the market shall be substantially developed and considerably enhanced.
Copyright: New-type copyright industries focusing on such fields as software and internet, creative designing, media communication shall be promoted and developed. Till 2010, the proportion of Shanghai¡¯s core copyright industries in its total GDP, working population of core copyright industries in the total working population in Shanghai and the export of products and services of copyright industries shall command a leading position in China.
Integrated Circuit Layout: The level of designing and the overall strength of Shanghai¡¯s integrated circuit designing enterprises shall be continually enhanced. The amount of integrated circuit layout registration shall go on keeping its leading position in China.
New Varieties of Plant: Focused efforts shall be made to foster original varieties which can reflect Shanghai¡¯s agricultural advantage. Till 2010, the amount of new plant variety patent application shall be greatly increased. The implementation of variety patent system shall yield rich fruits.
According to the planning of the ¡°Outline¡±, in the coming years, Shanghai will promote its intellectual property strategy by focusing on ¡°four handholds¡±: to stimulate innovation ability; to effectively protect intellectual property; to transform the administrative function of the government, and establish a sound service system of intellectual property; to foster and gather an army of intellectual property personnel. The focus of recent work is to carry out three promotion plans. The first is the promotion plan of intellectual property strategy of relative government departments. All the relative departments of intellectual property shall make plans on promoting the implementation of the ¡°Outline¡± by basing on the actual conditions of each department, on the Eleventh Five-Year Plan, and on ¡°Several Opinions on Further Strengthening the Intellectual property of Shanghai¡±. The second is the promotion plan of intellectual property strategy of the trade unions. In 2005, efforts will be made to encourage 10 trade unions to make and implement promotion plan of intellectual property. The third is the promotion of intellectual property strategy of the enterprises. Enterprises shall be assisted in making their intellectual property strategy.
4,Implementing ¡°Specific Action on the Protection of Intellectual property¡±
According to the decision made by the State Council, from September 2004 to August 2005, a specific action focusing on the protection of trademark, copyright and patent will be carried out throughout the country. The action lays its emphasis on the import and export of goods, on all types of exhibitions and wholesale markets, on processing for certain brands and on printing and copying, focuses on the centers of counterfeit trademark, pirate and intellectual property infringement, makes breakthroughs on cases evoking strong responses from right-holders and with gravity of the circumstances and baneful influence. Through strict law enforcement, the action is aimed to crack down offender or criminals who committed infringement of intellectual property. As one of the 15 key regions of this specific action listed by the State Council and an influential international megacity, Shanghai bears heavy duty and arduous task in the action. So far, Shanghai has made its ¡°Implementation Project of the Specific Action on the Protection of intellectual property¡±, and has made detailed deployment on the further rectification and regulation of the economic order of the market and on the active implementation of the specific action on the protection of intellectual property. All relative works are still on the march.
From Nov. 24 to Nov. 25, 2004, the annual working conference of the intellectual property cooperation network among 16 cities in the Changjiang Delta was held in Yangzhou, Jiangsu Province. Around 30 people attended the conference who represent the intellectual property bureaus from Shanghai and other 15 cities from Jiangsu and Zhejiang Province.
During the conference, the intellectual property bureaus of Shanghai, Jiangsu, Zhejiang and the city of Wuxi introduced their working experiences respectively on carrying out scientific views of development and implementing intellectual property strategy; regional economy and intellectual property strategy; improving cooperative mechanism of law enforcement; and strengthening the protection of intellectual property. Representatives of the conference also held wide and in-depth discussion on the system of joint conference on intellectual property among 16 cities in the Changjiang Delta, on the cooperation mechanism of patent administrative law enforcement, etc. Through the discussion, all parties reached consensus on name, purpose and plan of next move of the joint conference on intellectual property among 16 cities in the Changjiang Delta. Decision was made to rename the ¡°Joint Conference on Intellectual property among 16 Cities in the Changjiang Delta¡± as ¡°Joint Conference on Intellectual property Work in the Changjiang Delta¡±, and intellectual property bureaus of Shanghai, Zhejiang and Jiangsu were appointed as executive members of the conference. A standing organ or secretariat was to be set up in Shanghai Intellectual property Bureau, whose function is to deal with and coordinate various work and routines. The conference set the purpose of the Joint Conference as ¡°sharing information, coordinating interests, promoting united action and common development¡±. The conference made it clear that the next move would be carrying out united action by focusing on the protection of intellectual property, on the construction of platform of information and trade of intellectual property and on the fostering of intellectual property personnel. The theme of the work in 2005 is to strengthen the protection of intellectual property, and to carry out actual step in work by coordinating with the nationwide specific action on the protection of intellectual property. The Conference also decided to establish the cooperation mechanism of patent administrative law enforcement in Changjiang Delta, to realize separable report and trans-regional right-upholding, and set up a fast channel for case transference and hand-over.
III. The Situation of Intellectual Property Protection
1. To launch a number of special programs of intellectual property protection with enhanced strength.
In the year 2004, Shanghai has persisted in integrating concentrated rectification and routine rectification with focus on ¡°the Publicity Week of April 26--World Intellectual Property Day¡±, the Specialized Rectification Month of Illegal Light Disks, etc. to punish the intellectual property right (IPR) infringement behaviors and safeguard legitimate interests. Such actions of rectifying and regulating the order of market economy and intellectual property right protection have achieved noticeable effects. In these specialized programs:
The municipality has sent out 75 person-times of law enforcement officials on patents and inspected 62 businesses and medicine distributors with nearly 3000 pieces of patent-involved commodities and medicines. Upon preliminary investigation, altogether 9 cases are suspected of being involved in patent infringement.
Shanghai Industrial and Commercial Administration has taken the famous brands and the highly popular foreign brands as its focus of protection, and has dispatched 1,558 person-times of law enforcement officials, inspected 2,850 stores, malls and trademark printing plants, temporarily detained and sealed up 28,009 pieces of fake goods suspected of trademark tort, wiped out 2 dens of manufacturing and selling fake commodities and 116 cases have been put on record for further investigation. Shanghai Industrial and Commercial Administration has also put into effect the prohibition on non-franchised stores to sell commodities with 40 foreign brands of high popularity including ¡°LV¡¯. The Administration has altogether sent out 6,514 person-times of enforcement officials, posted 3,798 copies of ¡°The Notice¡± and ¡°The Proposal¡±, inspected 55,273 units/times of market stalls, put 122 cases onto record for further investigation, detained temporarily and sealed up 45,333 pieces of fake commodities, eliminated 13 dens and dismissed 6 stalls selling fake commodities.
The Shanghai Copyright Administration, together with other cultural inspection organizations of Shanghai, has inspected 2,514 publication distributors, banned a number of float businessmen/ground stalls, hunted down 1 illegal wholesale den, taken over 895,259 pieces of illegal audio-video products/electronic publications, 30,725 illegal copies of books, and 472 copies of pirate maps. It has also issued 556,221 administrative penalties and arbitrated 3 cases of compensation. Moreover, the Shanghai Copyright Administration has called for a special meeting attended by the market management representatives from 17 major computer malls and digital malls and has demanded that these businesses should take further measures to enhance the education and management of the sub-contractors to assure that no pirate software is sold or preinstalled. The different levels of city inspection teams all over the city have carried out a number of concentrated rectifications with IPR protection as its theme. 7,138 person-times and 1,101 car-times have joined these operations with a total of 8,514 cases handled, RMB 26,675 fined and 31,287 copies/pieces of illegal publications taken over. The police have put 20 persons involved in distributing illegal light disks into penalties including labor reeducation. After many years of effective cracking down, pirate manufacture could no longer be found within Shanghai. However the pirate light disks sold in Shanghai are coming from varied sources including overseas smugglers, which the Shanghai Customs are enhancing the measures of cracking them down and of intellectual property right protection.
Shanghai Customs has discovered 12 cases of suspected patent infringement through on-spot inspection, of which the value totaled RMB 750,000. It has also investigated and detained 7 cargos of goods of suspected patent infringement, of which the value totaled RMB 600,000. These efforts have effectively curbed the attempt of exporting fake commodities from the Shanghai port and safeguarded the orderly and fair development of import and export trade at the Shanghai port.
2. The situations of patent law enforcement and the analysis
According to ¡°The Trade Related Intellectual Property Agreement¡± of WTO, China¡¯s Patent Law has been revised for the second time and has strengthened the judicial protection on patent right, such as by preliminary injunction and legal compensation. It has also abolished the executive right of patent management organizations to determine the volume of compensation over patent infringement. The revision of the Patent Law has shifted the focus of administrative organizations to timely mediation of disputes, putting the infringement behaviors to an immediate stop, and effectively safeguarding the market share of the patent owners.
In the year 2004, the Shanghai Intellectual Property Administration has altogether accepted 33 requests for arbitration or mediation over patent disputes, among which are 31 requests over patent infringement and 2 requests over disputes of patent rewarding. 40 cases have been concluded, most of them ended with a mediation, namely by satisfying the patent owner¡¯s requests and timely putting an end to the patent infringement behaviors while educating the persons concerned. In this way, the purpose of resolving the contradictions is fulfilled.
Shanghai boasts two noticeable characteristics in settling the patent disputes. Firstly, the investigation team is established with the joint efforts by both the municipal and district governments. Based on the experiment on a few cases in 2003, the Shanghai Intellectual Property Administration, while handling the patent infringement cases in the year of 2004, has attained active support and cooperation from the district-level IPR organizations such as that of Minhang, Huangpu, Putuo, Jiading, Songjiang, Jinshan and Fengxian. The law enforcement officials of the plaintiff¡¯s location have also joined the investigation team as well to jointly settle the patent disputes. The establishment of such a patent law and administration enforcement model, on the one hand, relieves the Municipal Administration of the pressure due to lack of officials handling such cases; and on the other hand, improved the practical capabilities of the district officials of patent enforcement. What¡¯s more, it helps to exercise to the full the function of district-level IPR bureaus, and it also leads and educates the enterprises to enhance their patent right awareness. Secondly, the districts and counties have played the major role in settling the patent disputes. According to ¡°The Shanghai Municipal Regulations on Handling and Mediating Patent Disputes¡±, the district or county level IPR bureaus could mediate the patent disputes upon the request of the person concerned. Shanghai Intellectual Property Administration, after it has received the request of mediating the patent dispute by the obligee, sends the related materials to the district or county level IPR bureau with the jurisdiction right. From Jan. to Dec. of 2004, Shanghai Intellectual Property Administration has transferred 14 cases to the district-level IPR bureaus of Putuo, Jingan, Huangpu, Pudong, Changning and Qingpu. The joint investigation by municipal and district level IPR organizations and the leading role in mediating patent disputes by that of the district level greatly contributes to the full display of the quick and effective enforcement of law and administration.
3. To strengthen the IPR protection in Shanghai exhibitions and expositions.
In order to fully protect the international patents in the China Fair, Architecture and Trade Expo, Plastic and Rubber Industry Exhibition, these exhibitions have especially set up IPR offices with officials from both the municipal and district-level administrations spotted there for consultation and handling the patent-involved complaints from the exhibitors. For example, on the 9th International Architecture and Trade Expo of China, the officials have received 8 complaint companies with 23 companies being complained about patent infringement and the exhibits of 17 companies were called off on spot for suspected patent infringement. Their efforts have gained the appreciation and praise from the exhibition hosts.
IV. IPR Propaganda and popularization and specialized training
(1) To give a round of popularization and education-oriented lectures on IPR knowledge all around Shanghai
In order to actively promote the IPR education, popularize IPR knowledge and improve the IPR awareness among teachers, students, management staff in universities and colleges, on the basis of program of ¡°IPR coming into the campus, classroom and textbooks¡± in 2003, Shanghai has conducted a round of IPR popularization and education-oriented propaganda lectures in some universities and colleges. A total of 24 lectures focusing on 12 themes such as ¡°Technological Innovation and IPR¡±, ¡°IPR Infringement Identification and Patent Protection¡±, ¡°Software Copyright Protection¡± have been held and about 200-300 teachers and students have attended each lecture. By way of this round of lectures, the students have gained knowledge of the latest information of the business, changed their angels of observation and improved understanding of the business practices. The universities and colleges in Shanghai have also been required to include IPR knowledge in the teaching plans of the freshman students starting from the year of 2004 by way of integrating it with Document Retrieval courses and the course of Elementary Knowledge of Laws. Other university students could be educated about IPR by way of optional courses and special lectures.
(2) To launch the ¡°Propaganda Week of IPR Protection 2004¡±
The year of 2004 will witness the 4th World Intellectual Property Day. According to the national arrangement and the reality of Shanghai, the Shanghai Rectification and Regulation Office, SIPA, Shanghai Culture, Radio, Film, TV Administration (SCRFTA), Shanghai Industrial and Commercial Administration (SICA), Shanghai Copyright Administration (SCA), Shanghai Police and Shanghai Customs have jointly launched the activity of ¡°Propaganda Week of IPR Protection¡± from Apr. 19th to 26th all over the city. The theme of this propaganda week is ¡°Respect Intellectual Property Right and Maintain Market Order¡±. It is the very first time not only in Shanghai but also in the whole country to launch a specialized propaganda week for IPR protection which aims at popularizing IPR knowledge extensively, improving IPR awareness in the whole society and establishing a favorable atmosphere for IPR protection. This activity also aims at making the whole world realize that IPR protection is not only a fulfillment of our commitment of entering WTO but also the need of widening our opening-up to the outside world and speeding up our own development in national economy.
During the Propaganda Week, a series of propaganda activities about IPR protection are held in various forms in Shanghai. SIPA has held the ¡°Commencement Ceremony for the Shanghai IPR Protection Propaganda Week and the Proposal of Enhancing IPR Protection in Ten Major Businesses on Nanjing Road¡±. It has also held the ¡°Bao Steel Cup¡± prize-giving essay soliciting contest with ¡°Respect Intellectual Property Right and Maintain Market Order¡± as the theme on the Wenhui News. Shanghai Copyright Administration has cooperated with the TV station to broadcast in the golden hours the special TV program about publicizing the Law of Copyright as well as the special interview with Mr. Si Xuchao, the Deputy Chief of the Copyright Depart. of National Copyright Administration Of P.R.C. and Mr. Lou Rongmin, the Vice Head of the Shanghai Copyright Administration in order to publicize the achievements in cracking down the piracy and comprehensively rectifying the software market in Shanghai in recent years as well as to educate and encourage more enterprises to purchase and use the software with copyright. Mr. Le Jingpeng, the Vice Director of Shanghai Economic Commission, has delivered a special lecture entitled ¡°IPR and the New Round of Industrial Development in Shanghai¡± to an audience of over 800 at the Shanghai Library, which was also broadcasted in the ¡°Oriental Forum¡± program of the OTV station. Shanghai Customs has invited over ten multinational companies and well-known domestic companies, such as Philips (China) Investment Co., Ltd., Rosenbluth International, OIH, Shanghai ThreeGun Group, to attend the ¡°Shanghai Customs and IPR Owners Forum¡± so that both parts could well exchange and communicate with each other their opinions about the Customs¡¯ efforts of IPR protection. Shanghai Customs have also handed out the introduction pamphlets for improving the understanding between them. The Shanghai Radio Station has opened a special interview column for IPR in its ¡°Citizens and Society¡± program to introduce to the public the significance of setting the World Intellectual Property Day, to explain the relationship between IPR and the national and city development as well as the daily life of the common people, and to discuss with the citizens how to deal with the problem of purchasing pirate audio-video products and putting piracy to an end. The districts and counties also organized a variety of propaganda activities, such as publicizing IPR knowledge at the district/county TV and radio stations, newspapers, and public bulletins for science popularization, holding IPR quiz, giving large-scale street consultations. 8 districts/counties have invited the government officials to give speeches about the World Intellectual Property Day on TV; 13 districts/counties have had propaganda by means of TV, radio or press; 7 districts/counties publicized IPR on public bulletins for science popularization; 5 districts/counties have held IPR quizzes; 9 districts/counties gave square consultations or propaganda activities; 5 districts/counties have had law enforcement inspections. A total of 35 IPR symposiums, forums, lectures and trainings programs are given, among them the large-scale street consultation program featuring theatrical performance and on-spot prize-awarding quiz is especially successful in attracting a large number of citizens to participate.
(3) To launch a municipality-wide IPR knowledge quiz
From Nov. to Dec. 2004, with the aim of improving the public¡¯s awareness of rules of IPR and creating the perfect environment for IPR protection, 9 units including the Shanghai Municipal CPC Organization Department, Shanghai Economic Commission, State-owned Assets Supervision and Administration Commission of Shanghai Municipal Government (SASAC), Shanghai Intellectual Property Administration, Shanghai Information Commission, the Science Association, SMG, Jiefang Press Group, and the Wenhui-Xinmin Press Group, have jointly launched the ¡°Shanghai IPR Knowledge Quiz 2004¡±. This quiz consists of competitions on three levels: namely the competitive quiz broadcast at the ¡°Citizens and Society¡± Program of Shanghai Radio Station, the competitive 100-question quiz for citizens on two newspapers and five websites (i.e. Xinmin Evening News, Jiefang Daily, www.eastday.com, www.shcec.com, www.ssip.com.cn, www.seipsnet.org.cn, and www.shkp.org.cn ) and two rounds of team competitions. Such an organization reflects not only the extensive participation of the public but also the representativeness of the enterprises, and takes into consideration both the popularization and competition purposes. Altogether 243 contestants from 81 teams from large and medium-scale state-owned enterprises, foreign funded companies, private companies and scientific research institutions have participated in the team competition, and finally 6 teams competed in the TV final broadcasted in the program of ¡°Who¡¯s Going To Win Today¡± of OTV which is broadcasted nationwide. Thanks to the joint efforts from the whole municipality, the propaganda of IPR has reached an unprecedented scale and yielded favorable social effects.
(4) To shape the IPR training base consisting of ¡°three colleges and five centers¡±
The cultivation of IPR talents has been paid increasing attention to in Shanghai. Following the IPR College of Shanghai University, colleges specializing in IPR are also established in Tongji University and East China University of Politics and Law, and IPR research centers are also successively founded in Shanghai University of Traditional Chinese Medicine, East China University of Science and Technology, Fudan University and Shanghai Jiaotong University. By now, a training base of IPR teaching, researching and talent fostering consisting of ¡°three colleges and five centers¡± has taken shape in Shanghai.
These training sub-bases have helped the employees within IPR business in the form of seminars and public lectures. For example, in Sep. 2004 a public lecture entitled ¡°IPR Protection in Biological Medicine¡± addressed by Mr. Zhang Qingkui, the Director of Inspection Department of Chemical Creations of State Intellectual Property Right Office. In Dec. 2004, a one-day training class was also held on ¡°IPR Infringement Identification¡±.
Shanghai has actively promoted the training on patent workers and patent agents. In the year 2004, a total of 10 training terms were held with over 700 trainees. Another 2 terms of training for patent agents were held with over 200 trainees.
All through the years Shanghai has actively carried out the patent work in the experimental and demonstrative enterprises. The task of 2004 in this regard has been focused on the following aspects:
1. To launch strategic study on enterprise patent and intensify the efforts in promoting enterprise patent
On the basis of assuring the four ¡°haves¡± in experimental and demonstrative enterprises, namely these enterprises should have specific leaders, employees, systems and units for patent, Shanghai Intellectual Property Administration (SIPA) further requested the experimental and demonstrative enterprises to meet the demand of having patent plans/strategies so that the enterprises could gain more market shares by making full use of the patent system in market competition. In order to upgrade strategic research on enterprise patents to a relatively high level, SIPA has entrusted the Shanghai Research Institute of Petrochemical Technology to carry out the research entitled ¡°Study on Examples of Enterprise Patent Strategy Formulation¡± in the hope that an example text on enterprise patent strategy research could be worked out for the reference of other enterprises.
2. To increase the volume of patent application from experimental and demonstrative enterprises and enhance patent implementation
In the year 2004, Shanghai has further encouraged enterprises to establish a net of patent protection over their core technologies while developing new products. Up till now, 38 experimental and demonstrative enterprises of IP protection have altogether applied for 1,615 patents over the core technologies of their products, among which there are 945 creation patents, accounting respectively for 9% and 15.5% of the total application volume of Shanghai in the same period. Moreover, according to the survey in August on the patent exploitation progress of the third group of 12 experimental and demonstrative enterprises of IP protection, a total of RMB 8.82 billion worth of patent products have been sold by these 12 enterprises during the experiment period.
3. To finish the inspection and acceptance check on the third group of experimental enterprises
In August 2004, Shanghai Intellectual Property Administration and Shanghai Economic Commission have inspected and checked on the third group of patent experimental enterprises according to the government criteria. Twelve of these enterprises have been listed upon approval as demonstrative ones and 12 patent workers have been elected Excellent Patent Workers for their outstanding performance in the experiment period.
4. Important Progress has been achieved in patent work in joint ventures.
Some of the experimental and demonstrative enterprises are joint ventures, whose patent work has always remained a difficulty through the years. With the unremitting exploration over the years, the patent experimental joint ventures have accumulated some experience in overall management of the brand, market and the core technologies of the enterprise.
The year of 2004 has yielded abundant results in international exchange and cooperation in the field of Shanghai¡¯s IPR protection.
1. Incoming Visits.
In the whole year of 2004, Shanghai Intellectual Property Administration has received over 30 delegations with over 180 delegates from different countries and areas including U.S.A., Japan, Germany, Italy and Europe. Shanghai Intellectual Property Administration has introduced to the visiting guests the general situations, working structures and systems of IPR protection in Shanghai, and exchanged opinions with the guests about issues in promoting international cooperation and exchange.
2. Outbound Visits.
In 2004 Shanghai Intellectual Property Administration has organized two IPR delegations respectively to U.S. and Belgium for investigation and training.
From Mar. 27 to Apr. 3 2004, Shanghai Intellectual Property Administration has organized a delegation led by Mr. Yan Junqi, Vice Mayor of Shanghai to USA for a seven-day tour of investigation. The delegation has visited the Los Angeles Headquarters of American International Education Foundation (AIEF), United States Patent and Trademark Office, California Institute of Technology, George Washington University, and Georgetown University. During the tour, the delegation has met the senior officials of the Chinese embassy and consulates in US and has had a cordial talk with them on IPR, and especially on the IPR protection in Shanghai. This visit has greatly contributed to the signing of ¡°The Letter of Intent for the Cooperation between SIPA and AIEF in IPR Talent Cultivation¡±, and has provided a good chance for the delegation to know in details the technological transference and teaching of IPR in US universities and colleges as well as the operations of IPR Intermediary organizations, thus has laid the solid foundation for further cooperation.
From Oct. 10 to 30, 2004, Shanghai Intellectual Property Administration has organized a 20-day IPR training program in Europe, and 20 members from SIPA, district-level science associations, State-owned Assets Supervision and Administration Commission of Shanghai Municipal Government (SASAC), Shanghai Municipal Financial Administration, courts, procuratorates and universities have joined the training program. This program combines classroom teaching and field trips and focuses on WTO¡¯s TRIPs Agreement and international IPR rules, which is complemented by field trips aiming at understanding IPR management models in related enterprises and IPR management experience in European countries.
3. International Conferences.
In 2004, Shanghai Intellectual Property Administration has held the ¡°2004 Sino-US Shanghai Seminar on IPR Talent Cultivation¡± and the ¡°2004 Shanghai IPR Forum¡ªIPR and City Competitive Capability¡±. Entrusted by the State Intellectual Property Office, SIPA has undertaken the ¡°WIPO Asian Medium and Small-scaled enterprises IPR Seminar¡±.
¡°2004 Sino-US Shanghai Seminar on IPO Talent Cultivation¡± is a large-scale IPO training project jointly held by SIPA and AIEF as the first execution project. The seminar lasts three days from Oct. 28 to 31, 2004, and consists of 10 items of various forms such as round-table conference, US businessman training, university lecture and trade discussion. The locations are set in Hotel Equatorial Shanghai, Shanghai University and East China University of Politics and Law. A total of over 90 Chinese and US experts as well as an audience of over 700 have attended the seminar.
¡°The 2004 Shanghai IPR Forum¡ªIPR and City Competitive Capability¡± is hosted by SIPA and undertaken by Shanghai Electronics and Bao Steel with ¡°IPR and City Competitive Capability¡± as its theme. The Forum aims at analyzing how to promote IPR¡¯s function in optimizing the industrial structure and rebuilding and upgrading the city competitive capability of Shanghai through profound discussion on the topics like ¡°the Relationship between IPR and City Competitive Capability¡± and ¡°the Role of IPR¡¯s Creation, Application, Protection and Management in Upgrading the City Competitive Capability¡±. The Forum is also intended for analysis in how to enhance the enterprises¡¯ awareness of IPR protection, creation and strategy, and how to improve the government¡¯s level of making public policy and capability of control and regulation in the IPR field. Over 150 specialists and scholars from Europe, U.S., Japan and Korea, domestic experts on macroeconomics and IPR researches, local IPR scholars from universities and colleges, IPR directors from local large and medium-scale enterprises as well as government officials from IPR management departments have attended this international forum.
¡°WIPO Asian Medium and Small-scaled enterprises IPR Seminar¡± is jointly hosted in Shanghai by SIPO and World Intellectual Property Organization, and is undertaken by SIPA. 100 representatives from medium and small-scaled enterprises, government departments, research institutes in China and 22 other countries of Asian-Pacific region have attended the forum. In the forum, specialists and scholars from WIPO, Japan, Korea, Australia, Singapore and China have delivered excellent speeches on how to establish IPR marketing and brand strategy, how to upgrade the competitive capability of medium and small-scaled enterprises, how to exploit and develop the IPR properties in medium and small-scaled enterprises, and how to resolve IPR disputes and effectively exploit IPR.
4. International Cooperation.
Shanghai has been actively pursuing opportunities of international exchange and cooperation with overseas organizations and association. In 2004, 2 international cooperation projects have been organized with cooperation agreements signed.
Shanghai has signed ¡°SIPA and AIEF IPR Talent Cultivation Cooperation Agreement¡± with U.S.A. According to the terms of this agreement, sponsored by AIEF, altogether 50 Shanghai judges, public functionaries, teachers and administrators and other IPR-related workers will be sent to USA for various training programs in the next 7 years.
Shanghai has also signed the ¡°Memorandum of Cooperation and Exchange between Shanghai China and Lombardy Italy¡± with Italy. Both sides have expressed the common intention of cooperation in IPR protection, talent cultivation and exchanges in counterpart fields.
5. Consulate News-briefing Meetings.
Each year Shanghai holds news-briefing meetings on IPR protection with all consulates in order to keep them well informed of the IPR protection situations in Shanghai. In 2004, 28 officials from 17 consulates in Shanghai have attended the news-briefing meeting, in which SISA, SCA, SICA, SCRFTA and Shanghai Customs have briefed the IPR protection status in respective field and answered the related questions. Besides, the consulate officials are also granted copies of ¡°The White Book of 2003 Shanghai IPR Protection¡±, and the English-Chinese version of ¡°The Shanghai IPR Service Guide¡± which introduces the revisions in Chinese laws and regulations in 2003 and the executive and judicial IPR organizations as well as IPR intermediary agencies in Shanghai.