Читать книгу Intellectual Property Rights in China - Zhenqing Zhang - Страница 8

CHAPTER 1

The Political Economy of Chinese Patent Legislation

Introduction: A Challenging Patent Case and the Adoption of the Chinese Patent Law in the Early 1980s

December 11, 2001, was an important day for the Chinese intellectual property rights (IPR) circle. On that day, China formally acceded to the World Trade Organization (WTO) after fifteen years of painstaking negotiations.¹ As an important part of China’s WTO entry negotiations, China signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. That move marked China’s de jure compliance with the international IPR regime. Like other issue areas, China reached agreement on IPR after rounds of bitter bargaining. This chapter analyzes the compromises, competition, and controversies among various domestic and foreign interest groups surrounding China’s de jure compliance with the international patent norm.

To help understand the convoluted decision-making process that culminated in China’s adoption of the IPR norm, I interviewed Ms. Mei, a senior legal adviser at the Chinese State Intellectual Property Office (SIPO). One of the main goals of my interview was to figure out why China decided to adopt an international norm that it had once rejected. In answering my question, Ms. Mei began by explaining a challenging case that she encountered during an early stage of her career. In the late 1970s, a leading bicycle producer in North China’s Tianjin Municipality exported folding bicycles to a Southeast Asian country. This type of bicycle had a good reputation among the consumers in that country. However, in 1980, the Chinese bicycle company noticed that some factories in that Southeast Asian country were copying the company’s folding bicycles. When the Chinese company complained to that country’s government, they got the following reply: “Your home country does not have a patent law to protect the technology to make the folding bicycle. Why should we protect it in our own country?” The case was reported to the newly established Chinese State Patent Bureau (SPB) in Beijing, the predecessor of the Chinese State Intellectual Property Office, where Ms. Mei served as a junior patent agent. Ms. Mei reported the case to the senior leaders of the SPB. The case further reminded Chinese senior decision makers of the imperativeness of adopting a patent law in China.²

China eventually has established a sophisticated patent regime over the past three decades. China also joined a series of international IPR agreements. Despite having many critics, it is generally agreed that the standard of patent protection outlined in China’s patent legislation has met the minimum level required by international IPR agreements. At the same time, Ms. Mei advanced from being a junior staff member at the State Patent Bureau to one of the leading IPR experts in China. Shortly after Ms. Mei retired in 2009, I spoke with her on the phone. Recalling the aforementioned case in the early stage of her career, she told me,

[The case that I mentioned two years ago] was the first, but certainly not the last, challenging case that I encountered during my career. It is not pleasant to encounter these embarrassments. But isn’t it also a great growing experience to handle those cases? When I look back at my years in the IPR field, I should probably thank those challenging experiences. Through those experiences, I grew from an inexperienced junior IPR staff to a seasoned IPR professional. China’s IPR regime grew from scratch to a sophisticated legal setup. More importantly, China grew from a backward autarkic economy to a vibrant open market economy.³

This chapter discusses the “growing experience,” in Ms. Mei’s words, of China’s patent regime. A lot of previous scholarship on Chinese patent law has focused on how those legal provisions impacted the rights of various types of patent holders and the practice of patent litigation in the country.⁴ Built on the previous scholarship, my analysis will further analyze how China’s evolving political and economic situation shaped the country’s patent legislation process in the past decades. This chapter makes the following claims: first, although conventional wisdom holds the adoption of IPR legislation as the result of a decision made at the level of the Chinese central government, the decision-making process was by no means a monolithic one. Different interest groups competed and compromised to influence different parts of Chinese patent legislation. Other than the domestic needs for an IPR regime, foreign influence also has a very important role in shaping the present IPR system in China. There had been an incipient IPR regime in China before foreign pressure was keenly felt, but foreign pressure sped the pace of Chinese IPR regime’s merging into the international track from the 1990s on. Second, instead of being a monolithic norm, the IPR legal construct is torn between two aspects: one is to protect IPR; the other is to prevent the abuse of IPR as a weapon against potential business competitors. The realities in China, compounded by the inherent contradiction within the IPR norm itself, make the norm more controversial in the country, even during the adoption stage. Third, during the spread of the IPR norm in China, the norm met strong resistance from different socioeconomic forces in China. Domestic resistance against the IPR norm has never ceased to counteract the influence of the pro-IPR interest groups, even several years after China’s accession to the TRIPS Agreement. The adoption stage marked China’s strategic compliance with international IPR norms. It constitutes the first step of IPR protection, but it is still a large distance from strategic compliance to the complete internalization of IPR norms. This chapter demonstrates that even this first step was accomplished with much painstaking effort.

This chapter is structured as follows: the first section gives a definition of the patent norm and discusses the two legs of the patent norm. The following four sections analyze four major periods of the history of Chinese patent legislation: the prereform era (1949–1978), the early reform era (1978–1990), the pre-WTO era (1990–2001), and the post-WTO era (2001–present). Although the evolution of the Chinese IPR regime is mainly reflected in the adoption of patent laws and the changing of specific legal provisions, the key task for researchers is to understand how the debates between numerous domestic and foreign interest groups have shaped the patent legislation as reflected on paper. Equally, if not more, important is to tease out how the evolution of China’s patent regime reflected the different stages of the ongoing market reform and how deeper integration into the global political economy influenced the evolution of the country’s patent regime. The conclusion section links back the empirical materials presented in this chapter to the book’s central argument by summarizing how competition among different interest groups influenced the evolution of the Chinese patent regime.

Patent Norm and Its Two Legs

A patent is a time-limited, exclusive right that is granted for an invention. As the TRIPS Agreement states, “Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.”⁵

Patent protection is usually related to technology-intensive innovation and provides inventors with the right of exclusion from the use, production, sales, or import of the product or technology in question. Once a patent expires, the invention enters the public domain. Arguments in favor of patent protection are often centered on the various incentives that patents create for innovative activity.

There are two important aspects of the IPR norm: rewarding human creativity, on one hand, and promoting general social welfare, on the other hand. The two aspects are closely related to each other, but they have also competed with each other for centuries.⁶ In fact, because the object of IPR legislation—the output of intellectual creation—is extremely fluid compared to other types of private property such as land, real estate, or monetary income, any patent legislation is perpetually confronted with the task of balancing private rewards for intellectual creation and public benefits. An enormous legal literature points toward the delicate but important relationship between these two legs of the IPR regime.⁷

As a reflection of that relationship, the contemporary IPR regime consists of two legs: one is to protect IPR and the other is to prevent the abuse of IPR as a weapon against potential competitors. Without these two equally strong legs, the IPR legal construct cannot stand steadily.⁸ The IPR legal construct in most countries bears the task of regulating the relationship between state, business (including the IPR holder as well as the infringers), and the public that consumes IPR products. Specifically, a full-fledged IPR law has to address the following questions: What kind of intellectual output shall be protected as IPR? What is the boundary between the privatization of intellectual output and fair use of IPR by the general public? What constitutes infringement of IPR? Who is responsible for protecting IPR from possible infringement? How should legal remedies be made in case of IPR infringement?

This general trend also applies to patents. In the past decades, the global diffusion of the patent norm met as much applause as resistance from different socioeconomic forces in different countries. Some praise patents as an effective means of promoting technological innovation. Others criticize contemporary patent legal arrangements as tools to exploit the material wealth of the developing countries.⁹ As discussed in the following sections, the journey of the patent norm in China has never been smooth because of both the inherent contradiction within the norm itself and China’s specific domestic socioeconomic context.

Chinese Patent Regime During the Mao Era, 1949–1976

This section examines how the dominant ideology during the Mao era impacted China’s patent regime. I contend that there was an incipient patent regime during the early period of the People’s Republic. However, the dominance of socialist public ownership contradicted the notion of protecting technological innovation as private property. That contradiction rendered China’s incipient patent regime largely ineffective.

Policy and Ideological Environment During the Mao Era: “March Towards Science and Technology”

Although the majority of the Chinese Communist Party (CCP) members were workers and peasants during the revolutionary era before 1949, the Party’s top leaders were fully aware of the importance of science and technology professionals. In December 1939, for example, the CCP top leader Mao Zedong drafted the Decision on Recruiting Intellectuals at Mass Scale. In that document, he posited that “the Communist Party should recruit intellectuals in order to organize a great revolutionary force…. Our revolution is unlikely to succeed without the participation of intellectuals.”¹⁰ Under that initiative, the CCP recruited a significant number of technological professionals specializing in ammunition production, communication technology, and medical treatment. In some CCP-controlled areas, the government designed some regulations to provide material rewards for technological innovation in the 1940s.¹¹

After the CCP came into power in 1949, the Party continued to uphold the importance of science and technology in numerous leadership speeches. For example, then Chinese top leader Mao Zedong pointed out in a speech that “we have to fight the battle of science and technology. We have no other choice but to win that battle.”¹² During the first National Conference on the Issue of Intellectuals, the Chinese Communist Party further called upon the entire nation to “march towards science and technology” (xiang kexue jishu jingjun).¹³

The development of China’s science and technology during the early period of the Mao era did not stop with those exciting slogans. In 1949, there were fewer than 40 scientific research institutes and fewer than 50,000 technological professionals in China. In 1965, however, China boasted 2.46 million science and technology professionals and 1,714 professional scientific research institutes.¹⁴ Starting from scratch, China built a science and technology system that encompassed such key fields as material science, geology, communication, metallurgy, and chemical engineering.

However, the development of Chinese science and technology in the 1950s and 1960s was guided under a Soviet model. Under that model, protecting the result of technological innovation as private property was diametrically opposed to the notion of socialist public ownership. The products of intellectual invention or creation belonged to all members of the larger society rather than the individual creators. A Beijing-based IPR scholar made a thorough analysis of the prevalent ideology governing Chinese science and technology sector in the 1950s:

Did you notice a common feature of the blood-burning slogans cited by the Chinese top leaders [during the Mao era]? Be it “Fight the battle of science and technology” or “March towards science and technology,” there was a military connotation in these slogans. This means that the Chinese top leaders still regarded technological innovation as a cause similar to their revolutionary enterprise. They just won a revolution. They were so familiar with and so good at revolutionary mobilization. Is there a place for individual benefits in a revolutionary army? Of course not! However, the point is that science and technology professionals were different from revolutionary soldiers. It took the Chinese people quite some time to realize that.¹⁵

According to the recollection of an electrical engineer,

When Mao Zedong called upon the Chinese people to “march towards science and technology,” I was a college student. At that time I felt as if my blood was burning. Our country had been poverty stricken for so many years. I was willing to sacrifice anything to make our country stronger. The claim of individual benefits should be considered a shame for many of us. We were educated that we should attribute any personal achievement to the great Party and the great leader.¹⁶

Under that policy environment, protecting technological innovation as private property was heretical in the eyes of the Chinese decision makers. That inevitably impacted Chinese patent legislation in the Mao era.

The Rise and Fall of an Incipient Patent System in China, 1949–1976

Throughout my field research on the Chinese patent regime during the Mao era, I did not encounter much historical record of the debates and controversies about the adoption of those legal arrangements. An analyst at the SIPO offered me a reasonable explanation: “It came as little surprise to me that there were hardly any debates during the adoption of patent laws in the early years of the People’s Republic. That is not because everybody agreed to protect technological innovation as patents. Instead, that is because the issue of patent was too trivial to arouse any debates during the Mao era.”¹⁷ The analyst’s claim is well supported by the evidence from the legal texts of Chinese patent regulations in the Mao era.

Months after the establishment of the People’s Republic, the Chinese government adopted the Provisional Regulations on the Protection of Patent Rights adopted in 1950, known as the 1950 Provisional Regulations (Baozhang Faming Quan yu Zhuanli Quan Zanxing Tiaoli).¹⁸

However, a close reading of the 1950 Provisional Regulations reveals a deeply rooted contradiction. First, the crux of the 1950 Provisional Regulations was that patent rights were not protected as the private property of the inventor. Although the 1950 Provisional Regulations granted both proprietary patent rights and nonproprietary financial rights (Articles 6 and 7), Article 8 provided that the invention right (faming quan) is only granted if the inventor works with a factory, minefield, scientific research organ, or other research institute. Since these branches handled the majority of scientific research activities in China during the 1950s, invention rights took a de facto precedence over patent rights, although they were given equal weight on paper.

Second, Article 14 provided that “if the central government principal organ deems it necessary for inventions or patent to be transferred to the State for the latter to use and manage, it may ask patent right to be transferred to the state upon consultation with the patent holder.”

Under that article, the already vulnerable patent right was subject to the state’s seizure if the latter deemed it necessary. Last but not least, Section 3 of Article 7 provided that “others shall not utilize the invention without the authorization of the patent holder; those who break the law shall compensate the patent holder’s loss.” Article 12 further specified five situations under which patent infringers shall be subject to civil or criminal punishment. However, the following important aspects were not provided: (1) how the patent holder’s economic loss should be calculated and (2) who is responsible for enforcing the law in cases where patent infringement happens.

With those inherent defects, the 1950 Provisional Regulations were seldom used. Before the 1950 Provisional Regulations were replaced by the Provisional Regulations on Awards for Inventions, Technical Improvements, and Rationalization Proposals Relating to Production in 1954,¹⁹ known as the 1954 Regulations, only four patents and six invention certificates were approved. In fact, all the four patents were granted in 1953.²⁰ In that sense, the 1950 Provisional Regulations hardly functioned during their short life span.

In 1963, China issued the Regulations on Invention Awards (Faming Jiangli Tiaoli) and Technological Improvement Awards (Jishu Gaijing Jiangli Tiaoli), also known as the 1963 Regulations, to replace the 1954 Regulations.²¹ By then, China had already established a full-fledged planned economy model dominated by socialist public ownership. The notion of granting property rights to individual inventors was ideologically inconsistent with the predominant socialist ideology at that time. As the title of the 1963 Regulations revealed, the term “patent” was replaced by “invention” and “technological improvements.” Inventors were deprived of their patent rights to the invention. The key provision in the 1963 Regulations regarding ownership of the invention is laid out in Article 23: “All inventions are the property of the state, and no person or unit may claim monopoly over them. All units throughout the country, including collectively owned units, may make use of the invention essential to them.”

Section 4 of both the 1963 Invention Regulations and 1963 Technological Innovation Regulations implemented a system of nonproprietary monetary awards for scientific inventions. However, in practice, the financial reward warranted by those two regulations did not materialize. According to the memoir of Wu Heng, then vice director of the Chinese State Science and Technology Commission, “During the over 2 years between 1963 and early 1966, the year when the Cultural Revolution broke out, 296 invention certificates were issued by State Science and Technology Commission. However, we neither awarded prize nor convened a national-level conference, except that we mailed invention certificates and medals to the inventors. Our country’s first prize-awarding conference for scientific invention never materialized as we planned.”²²

The 1963 Regulations were already a serious step backward on patent protection. The deadliest blow to China’s incipient patent regime came from the Cultural Revolution. The Cultural Revolution, a nationwide turmoil caused by internal strife within the Chinese top leadership, broke out in 1966 and plagued China until 1976. During the ten years of turmoil, radically hardline ideology dominated the country’s legal and economic activities while the country’s formal legal system and most government administrative agencies were completely disintegrated.

The Cultural Revolution exerted a disastrous impact on China’s incipient patent regime. In the realm of science and technology, even the system of nonproprietary invention certificates and monetary rewards was terminated. Chinese science and technology professionals were regarded as part of the “bourgeoisie class” and therefore the target of mass criticism. They were even ridiculed as “the stinking ninth class” (chou lao jiu). Tens of thousands of scientists and technicians were forced into heavy physical labor. Recognition and reward of intellectual creation was regarded as completely opposed to the country’s governing ideology.

Although the Chinese patent regime during the Mao era barely played a meaningful role in promoting the country’s intellectual creation, later generations of scholars still praised them as heralding the development of the IPR regime in the reform era, which started during the late 1970s.²³ At least it was established as an appropriate notion that scientific invention should be rewarded. When China started to introduce reform and the opening policy in the late 1970s, the country’s patent regime gained the opportunity to reestablish itself.

Chinese Patent Regime During the Early Reform Era, 1978–1990

This section argues that the introduction of reform and opening in the late 1970s gave rise to a set of new social and economic groups calling for patent protection. These factors constituted the key driving force for China’s reemerging patent regime in the 1980s. However, the still weak voice of the propatent group contributed to some important limitations of Chinese patent legislation in the early 1980s. Starting from the policy and ideology environment in the early 1980s, I discuss how the changing ideology in China shaped the legal arrangements of the first Chinese patent law adopted in 1984.

Policy and Ideology Environment in the Early 1980s: The Advent of “Spring of Science”

The late 1970s and early 1980s marked the beginning of China’s market reform. It is within this context that a patent law was adopted. I contend that while the major driving forces behind Chinese patent legislation came mainly from the domestic front, interaction with the outside world played an indispensable role in the adoption of the country’s first patent law. Specifically, on the domestic front, the improvement of the social status of Chinese science and technology professionals constituted the soil within which the Chinese patent regime began to reemerge. The recognition of the legitimacy of the market mechanisms further promoted the legitimacy of the desire of Chinese science and technology professionals’ claims of owning their intellectual creation. On the international front, China’s opening to the outside world not only attracted a considerable amount of foreign capital but also exposed the country to the internationally prevalent practice in patent affairs.

An important indicator of the improved social status of the Chinese science and technology professionals was Deng Xiaoping’s speech at the 1978 National Science and Technology Conference. At that conference, Deng Xiaoping denounced the once prevalent notion that Chinese scientists and technology personnel were part of the “bourgeoisie class.” Deng Xiaoping boosted the role of science and technology as the key to China’s economic modernization campaign. He further added that “[the Communist Party] should provide logistic support to the scientists and technology personnel and create necessary conditions for them.”²⁴ Deng Xiaoping’s 1978 speech received a warm welcome from the long-suppressed Chinese scientists and technology personnel. At the same conference, Guo Moruo, then president of Chinese Academy of Science, announced that “the spring of science is coming!”²⁵ From then on, the respect for knowledge and knowledgeable talents gradually became a prevalent norm in China.

The improvement of the social and political status of Chinese scientists and technology personnel was but the first step. In the early 1980s, China’s reform-minded leaders increasingly recognized that command planning and excessive public ownership seriously impeded China’s economic development. Under Deng Xiaoping’s reform scheme, private ownership, previously regarded as associated with capitalism and therefore incompatible with the socialist value, gained legitimacy in Chinese society and was allowed to coexist with public ownership. In a meeting with a foreign delegation in 1979, for example, Deng Xiaoping made the following statement: “[Some comrades hold that] market mechanism only exists in capitalist society. This is certainly not right. Why cannot socialist countries practice market economy as well? You cannot call that capitalism. Our country mainly relies on socialist public ownership, but we should incorporate market mechanism, too. That is called ‘socialist market economy.’”²⁶

Although Chinese decision makers still regarded the private economy as a complement to the Chinese state-owned economy, Deng Xiaoping’s statement represented a significant departure from the dominant ideology of excessive public ownership during the prereform era.

The Chinese top leadership’s recognition of the legitimacy of private ownership was not translated into state policy until much later. However, even the rumor about that progress stirred an exciting reaction among Chinese intellectuals. According to the recollection of the aforementioned electrical engineer, “When I first heard the news [about recognizing the legitimacy of private ownership], I could not believe my ears. If an entrepreneur can own his own enterprise, can an engineer own his own invention? That sounded insane to me at first. I was really excited [to hear that], but years of past experience reminded me that I should be cautious. It was just rumor, not state policy.”²⁷

Another important wing of China’s economic modernization campaign was the end of the autarkic economy and the opening to the outside world. In 1980, a Hong Kong company established the first China-foreign joint venture, Beijing Aviation Food, Inc., in Beijing, which marked the beginning of a huge inflow of foreign direct investment (FDI) in China.²⁸ Throughout the 1980s, the total amount of FDI inflow in China reached $16.19 billion.²⁹ This pushed the Chinese government to adopt a series of laws protecting and promoting foreign investment. For example, in 1986, China promulgated the Law of the People’s Republic of China Concerning Enterprises Operated Exclusively with Foreign Capital. Article 5 further provides that “except under special circumstances … the state shall not nationalize or expropriate a wholly-owned foreign enterprise. Should it prove necessary to do so in the public interest, legal procedures will be followed and reasonable compensation will be made.”³⁰

China’s open door strategy was not limited to attracting foreign investment. Equally important was the exchange of professional patent personnel between China and foreign countries. Before Deng Xiaoping came into power in 1978, China had its first interaction with the World Intellectual Property Organization (WIPO). In 1973, China sent a small delegation as observers of WIPO’s conference in Geneva.³¹ After the conference, Ren Jianxin, the head of that delegation, stressed the necessity of reestablishing China’s almost nonexistent IPR system in a report submitted to then Chinese premier Zhou Enlai.³² The end of the Cultural Revolution and the start of Chinese economic reform added momentum to China’s interaction with WIPO. In 1979, the general secretary of WIPO, Arpad Bogsch, visited China for the first time. During the visit, Arpad Bogsch discussed the possibility of adopting a patent system in China with Wu Heng, then vice director of the Chinese State Science and Technology Commission. In 1980, China formally joined WIPO.³³ At the same time, China also sent delegations to various foreign countries to study the operation of their patent system between 1978 and 1980. Those countries included not only developed countries, such as the United States, Japan, and West Germany, but also developing and then Communist countries, such as Brazil, Romania, and the former Yugoslavia.³⁴ The exposure to the practice of peer countries’ patent laws helped Chinese decision makers acquire much-needed firsthand knowledge before drafting the first patent law in China.

In a nutshell, Chinese political and economic development irreversibly stepped onto the road to reform and opening, beginning in the late 1970s. The reintroduction of private property rights in the country’s economic functioning and the opening to the outside world have inevitably shaped the reemergence of China’s IPR regime in the early reform period. Unlike the prereform era, however, Chinese IPR legislation efforts sparked deep controversies among various interest groups in China during the 1980s.

The Drafting of the 1984 Patent Law

China started drafting its first patent law in 1978 and adopted that law in 1984. Mertha gave a thorough discussion of the debates and controversies in the drafting process, particularly the debates among the leaders of the relevant administrative offices at the first several high-level meetings in 1980. Thorough as Mertha’s discussion is, I would add some new findings based on more recently declassified documents, particularly how the voice of the emerging economic groups, such as China’s rising export sector, impacted decision makers at the top level.

In 1978, China resurrected the 1963 Invention Regulations. Although that move was regarded as a first step back toward recognition of industrial property rights, the exclusive right to patent was still not recognized. It was still widely believed that granting property rights to scientists and inventors contradicted the underlying principle of socialism. With the introduction of reform and opening policy, Chinese senior leaders decided that a patent system was necessary to speed up scientific development.

In 1979, a group of scholars and officials convened to draft China’s first patent law. However, after the drafted version of the patent law was completed, certain ministries voiced skepticism and even opposition to the adoption of a patent law in China. On August 25, 1980, a vice-ministerial official with the Ministry of Machinery Industry wrote a letter to the top Chinese leader, Deng Xiaoping, expressing strong opposition to the enactment of patent law.³⁵ During several high-level meetings in and after October 1980, those opposition opinions had gained direct access to vice premier of the Chinese State Council, Fang Yi. The opposition opinions centered on the following points: first, the monopoly rights granted to the patent holders went against socialist norms of ownership and production. Second, a patent system would end up only protecting foreign interests during a time when foreign technology led a dominant advantage over Chinese domestic technology. Third, the adoption of a patent law in China would endanger the country’s “economic security,” particularly with regard to the chemical and pharmaceutical industry.³⁶

The propatent opinion prevailed in those meetings after hot debates. On March 7, 1981, the State Science and Technology Commission and the State Patent Bureau submitted the Report on the Patent Law of People’s Republic of China to the Chinese State Council.³⁷ The report recommended that the Chinese legislature adopt the patent law by the end of 1981. When the report was circulated among the different ministries for further discussion, it became bogged down at the Ministry of Machinery again.

This time, the Ministry of Machinery did not oppose the adoption of a patent law. Instead, the ministry put forward over seventy revision suggestions to the draft patent law. Many suggestions touched on fundamental principles of the draft patent law. For example, the draft patent law outlined different kinds of penalties against patent infringement. But the revision suggestions recommended a much lower level of penalty against patent infringement as outlined in the draft patent law. Moreover, the revision suggestions also recommended a much weaker stipulation of the exclusive rights of patent holders on the grounds that it went against the basic principle of socialist public ownership. If those suggestions had been incorporated, the patent law would have been left with only an empty frame.³⁸

These opinions stopped the draft patent law from being submitted to the Chinese State Council for further review. Since the Ministry of Machinery possessed the same bureaucratic ranking as the State Science and Technology Commission (SSTC) and the SPB, the SSTC and the SPB could not overcome the resistance of its own bureaucratic mandate. Luckily for the propatent officials, a series of events that happened during China’s trade and technology exchange with foreign countries provided the momentum for them in 1981 and 1982. In 1981, for example, a pesticide company in Shanghai copied the technology of a French company and produced an insect killer called phosethyl-al. When it advertised the “new” product, the French company, the French Embassy in Beijing, and the French National Institute of Industrial Property protested against the Chinese side. Eventually, the pesticide company in Shanghai had to stop the production of phosethyl-al. This resulted in a heavy economic loss for the Chinese company. There are no accurate statistical data about how many China-foreign trade disputes were caused by the absence of a patent law in China at that time. For the propatent officials in China, however, the key issue was that the reports of those disputes attracted the attention of the Chinese top leaders. Wu Heng, then director of the Chinese SPB, collected a series of similar trade disputes in a report and submitted the report to Chinese top leaders, including Vice Premiers Wan Li and Gu Mu, Premier Zhao Ziyang, and Communist Party General Secretary Hu Yaobang.³⁹

Similar things happened in China’s deepened technology exchange with foreign countries. In 1981, for example, a Chinese engineer affiliated with Northern China’s Taiyuan Polytechnic Institute invented a new means to produce alloy with mild steel, tungsten, and molybdenum when he was a visiting scholar in the United States. Applying that method at a massive scale in the Chinese metallurgy industry, energy and precious metals would produce significant savings, and the strength of the newly made alloy would be greatly improved. An American professor, who happened to be the collaborator of the Chinese engineer during his visit, identified the value of that technology and proposed they apply for a patent together with his Chinese colleague in the United States. Unfortunately, there were no legal arrangements in China to guide the Chinese engineer to apply for a patent and protect the technology. In fact, nobody in the Taiyuan Polytechnic Institute even thought about the issue in that way. Hence, the Chinese side did not receive any benefit from the technological innovation. A senior correspondent with Guangming Daily, China’s second largest newspaper, learned of that case and wrote a detailed report. Like the report on the aforementioned trade dispute cases, that report made its way into the internal government news sources (neibu cankao ziliao) and was circulated among Chinese senior leaders. That report attracted the attention of Hu Qili, then a member of the Chinese Communist Party Politburo. He commented on the report, “The adoption of a patent law is an imperative task for us. At least we should have a framework to protect our scientific inventions.”⁴⁰

After the first director of the Chinese SPB, Wu Heng, retired in spring 1982, his successor, Huang Kunyi, kept pushing for the adoption of the patent law.⁴¹ This time, the propatent voices gained the endorsement of the Chinese top leaders. In December 1982, the Chinese National People’s Congress approved the Report on the Sixth Five-Year Plan on National Economic and Social Development, drafted by then Chinese premier, Zhao Ziyang.⁴² The report posited that “those regulations that prevent the progress and technology should be abolished. A patent law should be adopted and implemented [in the next five years].”

On January 5, 1983, Chinese state councilor, Bo Yibo, told journalists that “[recently the leaders of the State Council] approved the establishment of a patent system. That is a great thing indeed. Our past experience suggested that there should be legislation to govern the realm of science and technology. Once there is such legislation, we should implement the law seriously.”⁴³ The fact that Bo Yibo participated in the drafting of the 1950, 1954, and 1963 Regulations added weight to his comment.

The endorsement from the Chinese top leadership helped the propatent camp overcome resistance from the antipatent camp. Since the propatent voice came from leaders with higher ranking, the leaders of the Ministry of Machinery told Huang Kunyi and his colleagues that they would no longer raise any objections to a patent law.⁴⁴ On September 29, 1983, the draft patent law, which had been bogged down for almost two years, was eventually submitted to the Chinese National People’s Congress for the final review. On March 12, 1984, the Standing Committee of the National People’s Congress (NPC) adopted China’s first patent law, which went into effect on April 1, 1985.

Different from the characteristically brief 1950 Regulations, 1954 Regulations, and 1963 Regulations, the 1984 patent law consisted of sixty-nine articles that covered requirements for the granting of patent rights (Articles 22–25), procedure for application for patent rights (Articles 26–33), process to review patent applications (Articles 34–50), balance of interests in the process of applying for patents (Articles 51–58), and the protection of patent rights (Articles 59–66).⁴⁵

The adoption of the first patent law in China turned out to be a big festival for Chinese science and technology professionals. The State Patent Bureau received 3,455 applications on April 1, 1985, the first day that the SPB started to accept patent applications. According to WIPO, this was a record high compared with patent organizations in other countries.⁴⁶ For the rest of 1985, the SPB received a total of 14,372 patent applications. In 1986, the SPB handled the first patent dispute case in China. During the 1980s, the total number of patent applications in China grew at an annual rate of 18.3 percent.⁴⁷ The adoption of patent law provided a vital driving force for China’s economic development. This was recognized by the former critics of patent law. In December 1989, a former leader of the Ministry of Machinery met one of the original drafters of Chinese patent law. He finally admitted that adopting a patent law in China was “the right thing to do.”⁴⁸

Despite these big steps forward, the 1984 Chinese patent law still bore the influence of socioeconomic conditions during the early reform period. The 1984 Chinese patent law was different from patent laws in developed countries, which had been in place for at least a century. These differences are mainly represented as follows.

First, the duration of invention patents in China was fifteen years,⁴⁹ as opposed to twenty years in most developed countries. That is, technological innovation can be readily used by the public for free fifteen years after the granting of patent rights. A legal scholar interprets the shorter duration of patents as a move that encourages the dissemination of certain technology. Second, the scope of patentability under the 1984 Chinese patent law was narrower than the laws of the developed countries. Under Article 25 of the 1984 Patent Law, food, beverage, and flavorings, as well as pharmaceutical products and substances obtained through chemical processes, should not be granted patent rights.⁵⁰

As will be discussed later, the articles came under serious attack by the U.S. pharmaceutical industry with an intention to invest in China in the U.S.-China bilateral IPR negotiations in the 1990s.

Chinese Patent Regime’s Deeper Integration with the Global IPR Norm, 1989–2001

During the reemergence of China’s patent regime in the 1980s, external influence began to be felt with both the increase of China’s foreign trade and the growing exchange between China and foreign countries. In the 1980s, the key driving force of China’s patent legislation mainly came from within. It was not until the 1990s that bilateral and multilateral pressure on Chinese IPR legislation was keenly felt. The China-U.S. bilateral IPR negotiations and China’s WTO entry were of particular importance. In this part of the chapter, I examine how the disputes over specific aspects of Chinese patent law were raised, debated, and resolved. I contend that external pressure played a key role in quickening the Chinese IPR regime’s deeper integration with the global IPR regime in the 1990s.

The Rise of China-U.S. IPR Disputes in the 1990s and Its Impact on Chinese Patent Regime

The issue of IPR was already raised shortly after China and the United States opened bilateral trade ties in 1979. On January 31, 1979, China and the United States signed the Implementation Accord on Cooperation in the Field of High Energy Physics. In Article 6, it stated that both sides “recognize the need to agree upon provisions concerning protection of copyrights and treatment of inventions or discoveries made or conceived in the course of or under this Accord.”⁵¹ On July 7, 1979, China and the United States signed the Agreement on Trade Relations.⁵² In Article 6 of the agreement, it was further stated that “both Contracting Parties in their trade relations recognize the importance of effective protection of patents, trademark, and copyrights.” Those were among the first China-U.S. bilateral agreements addressing the issue of intellectual property rights. According to the recollection of a Chinese IPR scholar, the U.S. side insisted that the agreements should include an article addressing IPR protection. However, China had just barely started drafting the patent law. The regulations as outlined in those bilateral agreements remained on paper and were rarely cited in real policy practice. The situation started to change as the U.S.-China bilateral trade ties deepened during the mid- and late 1980s.

Although the U.S. private sector and IPR lobbying groups had already raised complaints about China’s insufficient efforts to protect IPR in the mid-1980s,⁵³ this issue was not brought to the government level until the late 1980s. In 1988, the United States revised its 1974 Trade Act and adopted the Omnibus Trade and Competitiveness Act. Under Section 301 of the 1988 Omnibus Trade Act, the U.S. Trade Representative (USTR) was empowered to identify and investigate countries deemed as doing “unfair trade practices” and impose sanctions where appropriate. Under the lobbying efforts by trade interest groups, the 1988 Omnibus Trade and Competitiveness Act further empowered the USTR to investigate and level trade sanctions against countries considered violators of the U.S. IPR. This part of the 1988 Omnibus Trade Act was later known as “Special 301.” China became an important target of Special 301.

In late April 1989, China was put on the “priority watch list” by the USTR for the first time. In May 1989, China sent a delegation to the United States, headed by Zhou Xiaochuan, then vice minister of foreign trade. That round of bilateral negotiation resulted in a draft memorandum of understanding (MOU). The draft MOU did not come into effect, but some scholars regarded it as setting the foundation for the formal MOU reached in the 1990s.⁵⁴ In the draft MOU, China promised to finish the revision of the 1984 Patent Law by the end of 1989, expanding the scope of patent goods and extending the duration of patents. China also promised to finish reviewing the country’s first copyright law by the end of 1989.⁵⁵ The U.S. side also agreed to remove China from the “priority watch list.”

After the Chinese delegation returned to Beijing, however, they were confronted with harsh domestic critiques. Some criticized the draft MOU as lacking a firm stance against U.S. pressure. Others even asked the delegation members whether they were “real patriots or selling out national interests.” At that critical juncture, then general secretary of the State Council, Luo Gan, stood on the side of the Chinese delegation team and praised them because they “did a lot of hard work under harsh conditions.” That intervention at least temporarily appeased the criticism.⁵⁶

The 1989 U.S.-China negotiation was only the beginning of a series of IPR brawls between the two countries. In 1991, China was confronted with a more serious challenge: it was listed as one of the “priority foreign countries.” Under the U.S. Special 301 regulations, a country would not be subject to U.S. trade retaliation if put on the “priority watch list.” However, if a country is included as one of the “priority foreign countries,” the U.S. government would be authorized to launch trade retaliation if that country was unable to improve its IPR protection in six months. In April 1991, the USTR published a report, pointing at four glaring inadequacies in the Chinese IPR regime: first, the Chinese patent law is flawed in that it does not grant patent rights to pharmaceutical and chemical products; second, Chinese copyright law does not grant protection to American works published outside China; third, Chinese copyright law does not grant copyright protection for computer software; and fourth, China did not grant sufficient protection for trade secrets.⁵⁷

After the publication of the U.S. Special 301 report in 1991, China and the United States went into several rounds of extremely tough negotiations. On several occasions, the two countries almost entered into a trade war with one other. On January 17, 1992, the two sides came to terms, signing the first MOU over the issue of IPR protection (known as the 1992 MOU).

The 1992 MOU was composed of seven parts that covered the revision of Chinese IPR laws (Articles 1–4), the establishment of U.S.-China bilateral dialogue on IPR issues in the future (Articles 5 and 6), and the termination of the U.S. Special 301 investigation against China (Article 7).⁵⁸ The core part of the 1992 MOU was China’s promise to revise its IPR laws to address the concerns of the United States.

Under Articles 1 and 2 of the 1992 MOU, China agreed to grant patent rights to pharmaceutical and chemical products and extend the duration of invention patents from fifteen to twenty years; China also agreed to increase foreign patent holders’ rights by providing nondiscrimination of patent rights regarding compulsory licensing and providing national treatment as well as administrative protection for chemical and pharmaceutical inventions. The other parts of the 1992 MOU focus on the protection of copyright and trade secrets in China. I will discuss these in Chapters 2 and 3.

The 1992 MOU had a tangible impact on China’s already existing IPR regime. On June 23, 1992, the director of the Chinese Patent Office, Gao Lulin, reported to the Standing Committee of the Chinese National People’s Congress on the revision of the 1984 Chinese patent law.⁵⁹ The revised patent law incorporated the spirit of the 1992 MOU by expanding the scope of patent protection, extending the duration of patent protection, and augmenting the protection of imported patent products. In December 1992, China promulgated the Regulations on Administrative Protection of Pharmaceutical Products and the Regulations on Administrative Protection of Agricultural and Chemical Products.⁶⁰ Those two regulations improved on the 1984 patent law and extended patent protection to pharmaceutical, agricultural, and chemical products.

The 1992 MOU only briefly covered IPR enforcement and the implementation of IPR laws. This issue turned out to be the core controversy between China and the United States during the two following rounds of IPR negotiations for the rest of the 1990s. In fact, the China-U.S. bilateral negotiations did not solve these issues completely. The issues of enforcement and implementation lasted well into the twenty-first century. I discuss these issues in Chapters 4, 5, and 6.

Revision of Chinese Patent Laws During the Country’s Bid for WTO Entry

While bilateral pressure from the United States propelled China to improve its IPR protection levels more quickly, external pressure also came from multilateral sources during the 1990s. The most important of these multilateral sources was the TRIPS Agreement. In 1995, the end of the Uruguay Round negotiation resulted in the establishment of the WTO. An important component of the new international trade arrangements was the establishment of a global regime for IPR governance: the TRIPS Agreement.⁶¹ Unlike the preceding conventions, the basic function of the TRIPS Agreement was to establish and enforce minimum international standards for IPR protection. There were some other significant changes to a number of aspects of the previous international IPR agreements. Specifically, TRIPS gives the governance regime teeth by applying the WTO’s dispute settlement mechanism to any international dispute regarding the undertakings within TRIPS. As part of the multilateral agreements that led to the establishment of the WTO, TRIPS also links IPR to the wider issues of international trade at the WTO. Moreover, TRIPS ushered in a global IPR regime that reached deep into the domestic regulatory environment of states.⁶²

China started its bid for General Agreement on Tariffs and Trade (GATT) membership in the mid-1980s. During this process, the Uruguay Round of multilateral trade negotiations incorporated the issue of intellectual property rights at the request of developed countries. In 1993, the TRIPS Agreement was reached and came into effect on January 1, 1995. On the same day, GATT was transformed into a more powerful multilateral trade organ, the WTO. As discussed earlier, the TRIPS Agreement possesses more enforcement power than the previous multilateral IPR treaties. During its bid for WTO entry, China was obliged to meet the minimum standards outlined by the TRIPS Agreement.

Before China acceded to the WTO in 2001, the Chinese National People’s Congress made important revisions to the Chinese patent, trademark, and copyright law, adjusting the level of IPR protection to the standard set by TRIPS.⁶³ Specifically, the Chinese National People’s Congress introduced thirty-five revisions to the sixty-nine articles of the Chinese patent law in 2000. The major revisions are as follows: first, the revised version of Article 14 provided that state-owned enterprises, as market entities, should be treated equally as non-state-owned enterprises in terms of their obligations and rights to patent applications. Second, Articles 41 and 46 provided that the authority to grant and invalidate the patent right was shifted from the patent bureau to the Chinese People’s Court.⁶⁴

Chinese Patent Regime During the Post-WTO Era, 2001–Present

Policy and Ideological Environment During the Early Twenty-First Century

China’s WTO entry did not end the evolution of the country’s patent regime. During the early twenty-first century, important changes happened on both international and domestic fronts, which were bound to impact China’s evolving patent regime. Internationally, the fourth ministerial-level conference of WTO members was held in Doha, Qatar, in November 2001. Before and during the conference, the developing countries and other nongovernmental organizations (NGOs) collaborated to voice concern over some arrangements in the TRIPS Agreement. Of particular concern for the developing countries was balancing the relationship between TRIPS and public health. For them, the related regulations in the TRIPS Agreement had too much emphasis on the interests of private owners, particularly the Western multinational corporations, and emphasized less the public and social benefits. The Doha Declaration, adopted after the ministerial-level conference, addressed those concerns. The Doha Declaration also incorporated articles concerning the protection of geographical indications, biodiversity, and traditional knowledge.⁶⁵ Those new developments reflected the developing countries’ efforts toward an IPR doctrine with further consideration of their interests. They also inevitably impacted China’s attitude toward the IPR norms during the new century.

Even before China’s entry into the WTO, domestic critics in China had complained that too many concessions had been made and that China moved too fast to merge into the international track of IPR protection.⁶⁶ The statement by an official that I interviewed expressed sentiments popular among the Chinese social public: “The Americans copied European countries for more than one century; why can’t we copy the Americans for twenty years? They just want to impose their standard upon us. But did they follow these standards when they were at our stage of economic development? The U.S. practices double standard on the issue of human rights. They did the same thing on the issue of intellectual property rights!”⁶⁷

The incorporation of related norms embodied in the TRIPS Agreement was not the final settlement for the disputes. According to an official at the Chinese Ministry of Commerce, with China’s bid for WTO membership completed, the issue of intellectual property rights in China has passed through the initial stage of adoption and entered into a new stage of “interest games in depth.” In his words, “Unlike the 1980s, an IPR regime has already been in place in China for almost twenty years. Even the weaker players in the IPR games would not dismiss IPR laws as unnecessary and unhelpful. However, they want to impact China’s IPR legislation in such a way that the legal arrangements can tilt less to the foreign IPR holders.”⁶⁸ Under such an international and domestic context, foreign IPR holders, who have been stronger players on the IPR field in China, became the targets of the criticism. A new round of interest games began.

Chinese Domestic Business Community and the Revision of the Chinese Patent Law During the Post-WTO Era

After China entered the WTO, foreign influence reached deeper into the Chinese political economy. Chinese domestic companies were put to a more stringent test on IPR issues by their international counterparts. The battles took place on both the international arena and the domestic arena. In 2002, China’s leading producer of communication equipment, Huawei, was brought to a patent lawsuit in Texas by Cisco, accusing the former’s American branch, Huawei America, of infringing upon the latter’s patent.⁶⁹ In 2003, General Motors (GM) filed a patent lawsuit in Beijing against Chery, a private auto company based in Anhui, accusing that a type of Chery’s auto products, QQ, had copied the industrial design of the auto body of Spark, a type of mini-car developed by GM.⁷⁰ These two leading IPR cases indicated that, after China’s WTO entry in 2001, the main fighters on the IPR battlefield shifted from states to companies. More important, as leading Chinese domestic companies, both Huawei and Chery are considered strong competitors for multinational corporations such as Cisco and GM. Not surprisingly, the two cases were interpreted by both the Chinese academia and the public as the abuse of intellectual property rights by foreign companies investing in China.⁷¹

Eventually, both cases ended up in outside court reconciliation,⁷² but critics of companies from the developed world have launched accusations of their abuse of intellectual property rights. At the same time, Chinese scholars and policy researchers have published reports on internally circulated materials, warning against the danger of foreign companies’ dominance in the Chinese market.⁷³ These appeals reached the decision makers of the SIPO. In 2004, the Chinese SIPO sent a working group to investigate the patent dispute between GM and Chery. The working group concluded that the real purpose of GM’s launching the patent suit against Chery was not to protect its IPR. Instead, GM’s real aim was to strangulate its competitor before it grew strong enough.⁷⁴

The working group’s report further convinced SIPO that patents were increasingly being utilized by Western companies to maximize their business interests rather than promote China’s own innovation ability. According to a document drafted by the Policy Research Office of the State Intellectual Property Office in March 2005,

Various signs indicate clearly that developed countries intend to control the practice of international patent affairs…. In order for our country to avoid being marginalized on the issue of patent affairs, … [we have to] summarize the experience of the practice of patent system during the past two decades so that it can better accommodate our country’s concrete condition. We should further kindle the passion of innovation by our country’s enterprises and individuals and better balance the interests of patent holder and social public.⁷⁵

Under these guidelines, the Chinese SIPO launched the process for the third revision of Chinese patent law in 2005. This process was completed on December 27, 2008, when the Standing Committee of the National People’s Congress passed the revised draft of Chinese patent law.⁷⁶ According to a Beijing-based IPR judge, the third revision of Chinese patent law was not driven by foreign pressure as much as the previous revisions; instead, the primary driving force was the need for China’s own economic development.⁷⁷

On December 27, 2008, the Sixth Session of the Standing Committee of the Eleventh Chinese National People’s Congress passed the revised draft of Chinese patent law.⁷⁸ Compared with the previous draft, the current draft further increases the financial punishment for patent infringement (Article 63). The current draft also adds provisions that outline the protection of traditional knowledge and genetic resources (Articles 5 and 26). The most significant revision pertains to the conditions that apply to compulsory licensing. According to Article 48, under the condition that patent holders’ business behavior is deemed as constituting a monopoly, a compulsory license can be issued by a related state organ to corporate or individual applicants who can use the patent. Under Article 50, patents for pharmaceutical products can be applied for under a compulsory license in the case of a public health emergency. To put it simply, in both cases, patents can be readily used by relevant parties without the authorization of the patent holders. Although the aforementioned development was noted by some foreign businesses as one of the signs that the pendulum of economic nationalist sentiments was swinging back,⁷⁹ history is not merely repeating itself. Behind the third revision of Chinese patent law is the interest competition that demarcates a new era, with a more complex set of actors involved.

The third revision of Chinese patent law greatly promoted Chinese society’s patent awareness. The issue of patent was linked to economic development more closely than ever before. The number of patent applications was even incorporated into the performance appraisal index of Chinese patent officials.⁸⁰ Those policies, however, overemphasized the quantity, rather than quality, of patents. Therefore, Chinese patent law could not fulfill its mission of promoting technological innovation in the country. Moreover, Chinese patent holders complained that, during the process of patent protection, there existed the problems of “hard to adduce evidence, lengthy lawsuit process, high protection cost, low legal compensation, and ineffective enforcement outcome” (juzheng nan, zhouqi chang, chengben gao, peichang di, xiaoguo cha).⁸¹

In light of those problems, the Chinese SIPO launched the fourth revision of the patent law in January 2012. After half a year of research, SIPO completed the first draft of the revised patent law, which was circulated among the IPR judges, business professionals, lawyers, and IPR scholars. On August 9, 2012, SIPO published the draft revisions on its website. In January 2013, the revisions were reported to the Chinese State Council for further examination.⁸² In 2014, the Chinese National People’s Congress conducted a new round of inspection of patent law enforcement. In the report to the NPC standing committee, it was admitted that “the overall quality of Chinese patents remains low and cannot accommodate the needs of our country’s economic and social development; significant gap exists between the outcome of patent protection and the expectation of innovators; the ability to apply patents remains low, which prevents patents from realizing their market values.”⁸³

Guided by the NPC report, SIPO introduced further changes to Chinese patent law in late 2014, revising eighteen existing provisions, adding eleven new provisions, and deleting one provision. The new revisions also added a special part on the application of patents. On April 1, 2015, SIPO posted the newly revised patent law online.⁸⁴ The fourth revision of Chinese patent law entered the final stage of substantive review.

Conclusion

With China’s WTO entry in 2001 and a series of revisions of the existing patent legislation, the formal patent laws in China have come into full de jure compliance with international patent norms. The evolution of China’s patent regime between 1949 and the present has been a dynamic and complex process, affected by the tensions between the propatent camp and the antipatent camp in the country. Externally, China’s patent legislation is impacted by a complex intertwining of bilateral and multilateral negotiations. The influence of the antipatent camp was not only present before Chinese patent law was adopted; they also tried to influence specific parts of the patent law to suit their needs when the adoption of a patent law turned inevitable in the early 1980s. With the patent law taking roots solidly in China’s legislative establishment, societal factors such as domestic and foreign business groups influenced the specific parts of the legal arrangements for the purpose of safeguarding their interests during the several revisions. As demonstrated in Chapter 2, the competition and collaboration among different societal actors also contributed to influencing the implementation of the patent norm.

The tensions among various economic and political groups during the evolution of Chinese patent law also reflect the gradual opening of a once tightly controlled authoritarian society. Recognizing the achievements of scientific research and technological innovation as private property during the late 1970s and early 1980s was part of the larger scheme of China’s market reform. China’s increasingly close ties with international economy cultivated and strengthened the propatent camp during the adoption stage of the country’s patent law. The voice of China’s rising export sector played a key role in breaking the stalemate between the propatent camp and antipatent camp in the early 1980s. Despite the harsh critique of “lacking a firm stance against the U.S. pressure,” the Chinese IPR delegation’s substantive concessions during the China-U.S. IPR negotiations in the 1990s constituted a key component of the country’s further integration with the world economy. Both domestic reform and opening to the outside world policy in China consolidated the legitimacy of private property, one of the cornerstones of a mature civil society. Although conventionally held as legal and economic matters, the sea changes in Chinese patent legislation represented an inseparable part of the country’s gradual liberalization in the past decades.

Looking into the future, it can be safely predicted that, instead of being compelled by the external influences from foreign governments and international organizations, the evolution of Chinese patent legislation in the next decade will be increasingly driven by the appeals of domestic economic and political groups and foreign businesses investing in China. Although the fourth amendment of Chinese patent law has not been completed, Chinese patent professionals at various levels expect that the revisions will focus on offering stronger protection for patent holders, enhancing the application of patents for industrial use, and promoting the quality of patents. With the rapid growth of the number of patent infringement cases, intellectual property offices at the local level are also expected to be granted an increased administrative mandate to enforce patent protection on the spot.⁸⁵ Whatever the future outlook of Chinese patent legislation is, the overall direction is clear. That is, Chinese patent legislation must reflect the demands of China’s industrial upgrading, under which the country’s economic growth increasingly depends on scientific research and technological innovation.

The establishment of a full-fledged patent regime in China is not the end of the story. More important is the implementation of those legal regulations and enhancement of China’s scientific and technological innovation. The adoption of the patent norm was already a difficult process given the competition among different actors, mainly at the level of the Chinese central government. The implementation of the patent norm would reach deep into the Chinese society, with the Chinese local government and the Chinese business community involved. In the words of Ms. Mei, “My career in IPR was about handling challenges one after another. When I retire, it is up to the younger generations of IPR professionals facing new sets of challenges. I know that those challenges will be more complex, but we have no other choice except to face them and handle them.”⁸⁶ The next chapter will address how Chinese patent professionals handle (or mishandle) those new and more complex challenges during the implementation of patent norms.