1. ABA Annual Meeting All Rights Reserved 2007 1 Brief Overview of the Intellectual Property System in China Elizabeth Chien-Hale ech@institute-ip-asia.org

2. ABA Annual Meeting All Rights Reserved 2007 2 Business Considerations: China produces a large number of counterfeits and infringing products China itself is becoming an important market Therefore, any business that is serious about China for marketing or manufacturing purposes cannot ignore IPR protection in China

3. ABA Annual Meeting All Rights Reserved 2007 3 Intellectual Property Rights Intellectual property laws and rights are territorial – Even though one application can be filed in different countries – Even though you may, after meeting certain requirements, claim the filing date of your first filing in the home country Your rights in the United States will not protect you in China

4. ABA Annual Meeting All Rights Reserved 2007 4 China Is Becoming a Big IP Jurisdiction According to the latest statistics, China has now surpassed the United States in both trademark and patent applications numbers

5. ABA Annual Meeting All Rights Reserved 2007 5 2006 Comparison Between the US and China China in 2006 Trademark: >700,000 applications Patent: > 570,000 combined invention, design, utility model patent applications United States in 2006 Trademark: >275,790 applications Patent: >410,000 combined Utility, Plant, and Reissue patent applications

6. ABA Annual Meeting All Rights Reserved 2007 6 WIPO Statistics

7. ABA Annual Meeting All Rights Reserved 2007 7 Main Government Regulators National People’s Congress Supreme People’s Court Supreme People’s Procuratorate State Council State IP agencies Their local counterparts

8. ABA Annual Meeting All Rights Reserved 2007 8 Private IP Professionals Power sharing or struggle between lawyers and IP agents.

9. ABA Annual Meeting All Rights Reserved 2007 9 Patent Protection Three types of patents: invention, utility model, design Patent applications are processed by the State Intellectual Property Office The protection framework is TRIPs-compliant Not all inventions patentable in the United States are patentable in China: for example, software/business method inventions After two sets of amendments in 1992 and 2000, a third set of amendments in currently in progress

10. ABA Annual Meeting All Rights Reserved 2007 10 Trademark Protection TRIPs compliant protection framework: collective marks, certification marks and three-dimensional symbols Trademark applications are received by the Chinese Trademark Office, which is under the State Administration for Industry and Commerce The CTO is now one of the busiest trademark office in the world The Chinese Trademark Law is also under revision

11. ABA Annual Meeting All Rights Reserved 2007 11 Copyright Protection Copyright protection, unlike patents and trademarks, does not require registration. Protection arises when the work is created and fixed in tangible form. Voluntary registration with the National Copyright Administration is recommended China grants reciprocal protection to persons from countries belonging to international copyright conventions or bilateral agreements of which China is a member

12. ABA Annual Meeting All Rights Reserved 2007 12 Major IP Laws in China "Patent Law of the People's Republic of China,“ "Trademark Law of the People's Republic of China,“ "Copyright Law of the People's Republic of China," "Regulations on the Protection of Computer Software," "Regulations on the Protection of Layout Designs of Integrated Circuits," "Regulations on the Collective Management of Copyright," "Regulations on the Management of Audio-Video Products,“ "Regulations on the Protection of New Varieties of Plants," "Regulations on the Protection of Intellectual Property Rights by the Customs," "Regulations on the Protection of Special Signs“ "Regulations on the Protection of Olympic Logos. Unfair Competition Law Other relevant laws: Contract Law, Criminal Law, etc.

13. ABA Annual Meeting All Rights Reserved 2007 13 Enforcement Channels Administrative Judicial

14. ABA Annual Meeting All Rights Reserved 2007 14 Customs Protection New Regulations on Customs Protection of Intellectual Property (IP) Rights came into force in March 2004 Customs officials can detain and confiscate imported and exported infringing goods at the border Two types of protection: – Active protection: for pre-recorded IPR only; initiated by customs officials – Passive protection: recording of IP rights with the customs authorities no longer required; initiated by IPR holders

15. ABA Annual Meeting All Rights Reserved 2007 15 New Developments Major legislative efforts: – Patent Law – Trademark Law New judicial interpretations: – Joint interpretation by the SPC and the SPP effective on April 5, 07, on several issues of concrete application of law in handling criminal cases of infringing intellectual property rights

16. ABA Annual Meeting All Rights Reserved 2007 16 WTO Complaint US requested consultation with China on April 10, 2007. Issues included – Threshold of criminal procedures and penalties; – Disposal of good confiscated by Customs authorities that infringe IPR; – Denial of copyright and related rights to works that have not been authorized for publication or distribution within China; – Unavailability of criminal procedures and penalties for a person who engages in either unauthorized reproduction or unauthorized distribution of copyrighted work.

17. ABA Annual Meeting All Rights Reserved 2007 17 Accession to WIPO Internet Treaties China acceded on March 9, 2007 and ratified on June 9th the following two WIPO internet treaties WIPO Copyright Treat WIPO Performances and Phonograms Treaty

18. ABA Annual Meeting All Rights Reserved 2007 18 The End Thank you! Elizabeth Chien-Hale ech@institute-ip-asia.org TEL: 408-776-8719 FAX: 408-776-8718