Mass Innovation, Mass Entrepreneurship and IP in Today’s China Mark Cohen Berkeley Center for Law and Technology April 2018

The Case of Patents Invention patents (like utility patents): 20 years, substantive examination Utility model patents (petty patents): 10 years, no substantive examination prior to assertion (costs less to apply for, lower maintenance fees, few office actions), quicker grant. Design patents: 10 years, no substantive examination prior to assertion, quicker grant.

Types of Inventors The number of patents granted vs. the type of inventors Colleges/Universities Research Institutions Corporations Public Sector Individuals Invention UMP Design Higher incidence of individual ownership in lower cost rights.

More Single TM Filers – Example of USPTO

More Widespread Distribution of Applicants

Administrative Enforcement Advantages: Inexpensive, Fast, Local, Expert Agency, Nearly Every IP Right Has An Administrative Agency, Don’t Need A Lawyer, Injunctive Relief Available. Disadvantages: Penalties May Be Non-Deterrent, Non-Transparent, Limited Geographic Jurisdiction, Damages For Injured Party Not Available. TRIPS Council submission: there were 41,163 trademark law violation cases in 2001. Infringers were ordered to pay the right owners damages of RMB 3,343,400 in total and there were 86 cases transferred to criminal procedures. In respect of enforcement of the Copyright Law, in 2001 copyright administrative authorities accepted 4,416 cases in total, among which 4,306 cases have concluded with rulings. Among those concluded, 3,607 cases ended with imposing a fine upon the infringers; 633 cases ended with mediation; and 66 cases were transferred to criminal procedures. Exploit local and administration protectionism

Administrative Enforcement In 2017, the Patent Administrative Law Enforcement authority handled 27,305 patent infringement cases (a 35.0% increase). 17.1% (4,803 cases) involved invention patents; 31.6% (8,849 cases) involved UMPs; and 51.3% (14,460 cases) involved design patents. In 2017, there 28,189 trademark administrative enforcement cases. See Cohen, Kappos and Rader, “Faux Amis: China – US Patent Administrative Enforcement Comparison”, (China Patents and Trademarks, 2016). http://www.cpt.cn/uploadfiles/20170220103128979.pdf.

Judicial Procedures “for the Masses” Article 58 – Agents Ad Litem Possible (lawyers not necessary) Article 64 – Limited Discovery Article 135 – Six Month First Instance Trials (three month appeals)

More Individual Patent Plaintiffs in Chinese Courts (Beijing IP Court/2017) Chinese patent plaintiffs, natural persons Foreign natural persons Chinese vs. Foreign, individual plaintiffs in orange/legal persons in blue

Tentative Conclusions There is wider distribution of IP ownership in China than in the United States by individuals. Individual plaintiffs are common users of the system both as grantees and as plaintiffs/complainants. “Mass entrepreneurship” and “mass innovation” (State Council, July 2017) offer a different narrative to that of a state-dominated IP regime.