Using IP to Promote International Trade, Foreign Investment and Transfer of Technology,Challenge and Benefits Wen xikai China Intellectual Property Training Center 2009.10.Manila [email protected].
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Using IP to Promote International Trade, Foreign Investment and Transfer of Technology,Challenge and Benefits Wen xikai China Intellectual Property Training Center 2009.10.Manila [email protected] Outline China benefited greatly from International trade, foreign investment and transfer of technology after adopting the structural reform and opening to the outside world policy. National IP Strategy lay Emphasis on the Use of IP to promote international trade, foreign investment and transfer of technology Challenges and measures taken by China to perfect IP system Opening up Policy & IP Protection China began the 30 years rapid development after adopting the “Invigorating Economy at Home and Opening to the Outside World” policy in late 1970s The establishment of IP system created favorable environment for international trade, foreign investment and transfer of technology, promoted China’s economic development IP protection provide good Environment for Economic Reform Sino-American Bilateral Treaty for Science and Technology, 1979 Memorandum of Sino- American IPR Understanding,1991 Accession to WTO, 2001 Achievements of IP Protection in China Increase of trademark registration Improvement of patent application both in quantity and in quality Accession to WCT and WPPT Achievements in copyright protection Issuance of the Outline of National IP Strategy Increase of Patent Applications(1985-2008) 发明 实用新型 外观设计 总计 900000 800000 700000 600000 500000 400000 300000 200000 100000 2007 2005 2003 2001 1999 1997 1995 1993 1991 1989 1987 0 Background of Great Achievements Adhere to the opening up policy Stick to using IP to promote economic development Strict enforcement of IPR protection IP Strategy & Use of IP to Promote Int. Trade, Foreign Investment and Transfer of Technology Thematic studies carried out Importance stressed in the Strategic Focuses of National IP strategy Relevant laws and regulations drafted and issued Related amendments in the newly revised patent law Strategic Focuses Intellectual property policy related to foreign trade needs to be improved. The mechanisms for administering intellectual property, early warning and emergency response, overseas IPR protection and dispute settlement need to be established and strengthened in foreign trade sector. paragraph (10), the Outline, Foreign Trade Law Foreign Trade Law of the People’s Republic of China, amended on 6 April,2004 This Law is promulgated with a view to enhancing the opening-up to the outside world, developing foreign trade, maintaining order in foreign trade activities and promoting a healthy development of socialist market economy. Article 1. China Chamber of International Commerce(CCOIC） June 1988 Customs Protection of IPR Regulations of the People's Republic of China on Customs Protection of IPRs(2003) Effective: March 1, 2004 2009 Implementing Measures for the «PRC Regulations for Customs Protection of Intellectual Property Rights» Effective: 01 July 2009 Revision of Patent Law to Promote Int.Trade Art.69 Art.69 (l) Where, after the sale (l) Where, after the sale by the patentee, or an by the patentee, or an entity or individual entity or individual authorized by the authorized by the patentee of a patented patentee of a patented product or a product product or a product directly obtained with directly obtained with the patented process, the patented process, the product is used, the product is used, offered for sale, marketed; offered for sale, marketed or imported; Measures Taken to Improve IP System Encourage innovation Strict IP protection according to law Keep abreast to international development of IPR Other measures aiming to balance the interests between IP owners and the public Encourage Innovation ownership of invention absolute novelty requirement for patentbility amendments concerning design patent …… Strict IP Protection According to Law Punishment more severe in the judicial explanation and the new patent law Administrative protection of IP by law stressed in the revised patent law Protection system improved in the new patent law Mass education carried out throughout the nation Keep Abreast to International Development of IPR Current Hot International Issues TRIPS & Public Health TRIPS & CBD Protection of GRTKF TRIPS and Public Health 1.We recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics. 2. We stress the need for the TRIPS to be part of the wider national and international action to address these problems. Declaration on the TRIPS Agreement and Public Health” Adopted on 14 November 2001 TRIPS and Public Health 6. We recognize that WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002. paragraph 6 of “Declaration on the TRIPS Agreement and Public Health” Adopted on 14 November 2001 China’s Stance China’s NPC approved the revision of the TRIPS in November 2007. SIPO promulgated Regulations to resolve the issue New Provisions in the newly revised Chinese Patent Law Related Provisions in the Amended Patent Law For the purpose of public health, the patent administration department under the State Council may grant a compulsory license to manufacture a drug which has been granted a patent right in China and to export it to the countries or regions specified in the relevant international treaties to which China is a party . Article 50 Related Provisions in the Amended Patent Law Except as otherwise provided for in Article 48(2) and Article 50 of this Law, the compulsory license is executed mainly for the supply of the domestic market. Article 53 Related Provisions in the Amended Patent Law For the purpose of providing the information needed for the regulatory examination and approval, manufacture, use or import of a patented drug or a patented medical apparatus, and exclusively for such manufacture or import of a patented drug or a patented medical apparatus. A.69(5) Protection of GRTKF The reviews on Article 27.3(b) or any other implementation issue should also look at: the relationship between the TRIPS Agreement and the UN Convention on Biodiversity(CBD); the protection of traditional knowledge and folklore; other relevant new developments that member governments raise in the review of the TRIPS. the Doha Declaration Role of GR The role of GR in world economy has greatly increased esp. in the fields of medicine, health care and biotechnology and showing the potential to provide enormous benefits to humanity. Provision of CBD The conservation of biological diversity is a common concern of humankind, States have sovereign rights over their own biological resources, States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner, Provision of CBD Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; Art.8(j) Provision of CBD Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party. Art.15.5 Principles of CBD Principle of State Sovereignty Principle of Prior Informed Consent Principle of Benefit Sharing China and CBD China fully supports the Objectives of the Convention on Bio-Diversity to maintain “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies” as provided in Art.1 of CBD. Related Provisions in the Amended Patent Law No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interests. No patent right shall be granted for any invention-creation which is completed on the basis of genetic resources the acquisition or use of which breaches the stipulations of the laws and administrative regulations. Article 5 Related Provisions in the Amended Patent Law An applicant who files application for a patent for an invention-creation developed on the basis of genetic resources shall indicate, in the patent application documents, the direct and original source of the genetic resources. The applicant who is unable to indicate the original source of the genetic resource shall explain the reason. Article 26(5) Other Measures Balancing the Interests Between IP Owners and the Public Where the infringing act occurs on the continuous basis and still continues, patentee may request to stop the infringing act without the restriction of the prescription for instituting legal proceedings However, where the infringing act has lasted for five years counted from the date on which the patentee obtains or should have obtained knowledge of the infringing act, but the patentee or the interested party fails to claim his right without any justified reason, the patentee shall not request for compensation for damages. Article A13 (Draft) …… Thank You for Your Attention ! [email protected]