China’s intellectual property (IP) landscape is changing rapidly. In my role as Director of International Policy at the IPO I have watched these changes first hand.
During my last trip I witnessed the signing of a historic agreement between the China Britain Business Council and giant e-commerce platform Alibaba about protecting IP online. Also Baroness Neville-Rolfe was featured on prime time Chinese evening news discussing IP with the Chinese government at the highest level.
In the past 30 years China has moved from a country with no legal protection for IP to the world’s largest generator of IP rights. And the pace of change shows no signs of slowing. And while there are still undoubtedly many difficulties and problems to be addressed for UK businesses operating in China, I can’t help feeling optimistic because in my view China ‘gets it’ about IP.
Both President Xi Jinping and Premier Li Keqiang have demonstrated a continuing interest in IP, publicly commenting on its crucial role in supporting innovation. In return, earlier this year Prime Minister David Cameron stated that IP is ‘absolutely top of [his] list’ for the UK-China relationship. And as you might expect, working with our Chinese opposite numbers is a core priority for us at the IPO too.
In recent years the breadth and depth of our engagement with China on IP has increased significantly and the UK is now China’s primary partner for IP cooperation. Last year, I accompanied the UK’s Minister for IP, Baroness Neville-Rolfe to attend UK-China IP Symposium week alongside a high court IP judge, patent and trade mark experts from the IPO and private-sector experts. Over 5 days the delegation covered 8 different cities and by the time we returned to the UK everyone was impressed by the scale of China’s IP system and the innovative approaches used. However, the most striking element of the visit was the dedication expressed by officials from State Councillor level to local intellectual property office to continue improving the system.
Supporting judicial reform in China: interim injunctions
China’s interest in sharing IP best practice has been particularly clear with the Chinese courts with whom we aim share UK expertise and experience to support reforms in China.
For example, senior UK judges have participated in exchanges on the topic of interim injunctions with Chinese judges and academics in Beijing, Guangzhou and London. This is not just of academic interest - interim injunctions are pre-trial court orders that prevent massive or irreparable damage from IP infringement. Companies report that Chinese courts' historical reluctance to award interim injunctions means they struggle to tackle large-scale shipments of infringing or counterfeit goods.
The Supreme People’s Court recently published a draft judicial guideline which for the first time provides Chinese judges with detailed instructions on how and when to award interim injunctions. For British IP experts, many of the steps listed in the new guidance will be familiar. For example, Chinese judges must now consider:
- a 'balance of convenience' test
- impact on market share and permanent price depression when assessing 'irreversible damage'
- a recognition that interim injunctions may be awarded when damage calculations are not feasible
The guidance is not yet in force. But looking ahead, these changes should enable businesses to more effectively safeguard their intellectual property, with new specialist IP courts in China well-placed to lead implementation of the new measures.
Shanghai Free Trade Zone
China is also trialling new IP policy approaches in smaller jurisdictions. The government has implemented four new specialised free trade zones in Shanghai, Tianjin, Fuzhou and Guangzhou. In the Shanghai Free Trade Zone, there has been particular interest in implementing new processes governing the admission of evidence and alternative dispute resolution mechanisms in an IP context.
The UK has cooperated closely with China to support these Free Trade Zones by setting up an International Experts Consultation Group. In Shanghai in 2014, I witnessed an impressive roundtable event where the Expert Group presented a report and recommendations to the Shanghai Municipal Government. Notably, the project was commended by a senior official from China’s Ministry of Commerce for creating a sustainable mechanism for long-term and practical cooperation.
As China continues to reform and strengthen its IP system it is my ambition that the UK remains a key partner for collaboration on IP. This year, the IPO will be working very closely with both the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys so that our domestic policy expertise is combined with private sector experience. Our engagement will include activities spanning multiple cities in both the UK and China, such as a high-level judicial exchange, UK-China Copyright Week and the third UK-China IP Symposium in London in the autumn.