Enforcing Intellectual Property Rights: A Methodology for Understanding the Enforcement Problem in China

The University of New Hampshire Law Review Volume 8 Number 1 Pierce Law Review Article 3 December 2009 Enforcing Intellectual Property Rights: A Methodology for Understanding the Enforcement Problem in China Justin McCabe Downs Rachlin Martin PLLC, Burlington, Vermont Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the Intellectual Property Law Commons, Other Languages, Societies, and Cultures Commons, Rule of Law Commons, and the Technology and Innovation Commons Repository Citation Justin McCabe, Enforcing Intellectual Property Rights: A Methodology for Understanding the Enforcement Problem in China, 8 Pierce L. Rev. 1 (2009), available at http://scholars.unh.edu/unh_lr/vol8/iss1/3 This Article is brought to you for free and open access by the University of New Hampshire – School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact . File: McCabe Final v.3.doc Created on: 1/24/10 7:11 PM Last Printed: 1/24/10 7:11 PM Enforcing Intellectual Property Rights: A Methodology for Understanding the Enforcement Problem in China JUSTIN MCCABE* TABLE OF CONTENTS I.   INTRODUCTION ........................................................................... 1   II.   PHILOSOPHY OF INTELLECTUAL PROPERTY ................................ 7   III.       ATTEMPTED IMPLEMENTATIONS OF PATENT LAWS IN CHINA .................................................................................. 12   A.  Treaty of 1903..................................................................... 13   B.  Patent Law in the Communist Era: Intermittent Regulations of 1950 ................................................................................ 15   C.  The Current Intellectual Property Implementation ............ 16   IV.     TEXTUAL ANALYSIS: U.S. AND CHINESE INTELLECTUAL PROPERTY PROTECTIONS AND PROCEDURES ............................ 19   A.  Infringement: As Defined and Limitations Thereto ............ 19   B.  Infringement: Enforcement of Patent Protections.............. 24   V.   CONCLUSIONS .......................................................................... 27 I. INTRODUCTION Intellectual property rights are neither protected nor enforced in strict uniformity throughout the world. However, it can be said that in most developed countries, intellectual property is preciously guarded, as evidenced by a plethora of intellectual property statutes, penalties for infringement, and consistent attempts to convince lessdeveloped nations to adopt strong—or stronger—intellectual property protections.1 Despite continued vigilance by developed coun* B.S., Chemical Engineering, University of Michigan (1998); M.E., with focus on Chemical Engineering, Case Western Reserve University (2003); J.D., Vermont Law School, summa cum laude (2003). The author is a patent attorney with the law firm of Downs Rachlin Martin PLLC in Burlington, Vermont. The 1 File: McCabe Final v.3.doc 2 Created on: 1/24/10 7:11 PM PIERCE LAW REVIEW Last Printed: 1/24/10 7:11 PM Vol. 8, No. 1 tries in bringing about increased international harmony among intellectual property regimes, some developing countries sustain questionable enforcement policies.2 What the driving force is behind intellectual property enforcement policies—or more appropriately, the lack thereof—is a matter of disagreement.3 In order to predict whether or not a country that is currently not enforcing its laws will enforce them in the future, it is undoubtedly necessary to understand the factors driving a country’s current enforcement policy. For instance, cultural, economic, or political factors, or a combination views expressed in this article are the author’s own and do not reflect the views of Downs Rachlin Martin PLLC. 1. To enhance protections for their own citizens’ intellectual property, industrialized countries have engaged in multinational and bilateral treaties with less developed nations, attempting to improve and harmonize intellectual property laws. For example, membership to the World Trade Organization (WTO) requires the assent to several treaties regarding intellectual property and the promulgation of laws to provide adequate protections to intellectual property. See Kirsten M. Koepsel, How Do Developed Countries Meet Their Obligations Under Article 67 of the TRIPS Agreement?, 44 IDEA 167, 168–69 (2004). There are currently 194 independent states in the world and 153 of them are members of the WTO. U.S. DEPARTMENT OF STATE, INDEPENDENT STATES IN THE WORLD (2009), http://www.state.gov/s/inr/rls/4250.htm; WORLD TRADE ORGANIZATION, MEMBERS AND OBSERVERS (2008), http://www.wto.org/english/thewto_e/whatis_e /tif_e/org6_e.htm. 2. See Keshia B. Haskins, Note, Special 301 in China and Mexico: A Policy Which Fails to Consider How Politics, Economics, and Culture Affect Legal Change Under Civil Law Systems of Developing Countries, 9 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1125, 1128–29 (1999) (noting that China and Mexico have many reasons not to enforce their copyright laws, including the profit to be obtained, protection of their own citizens from exploitation by industrialized countries, and a lack of concern for intellectual property generally). 3. Compare KONG QINGJIANG, WTO, INTERNATIONALIZATION AND THE INTELLECTUAL PROPERTY RIGHTS REGIME IN CHINA 5 (2005) (“[T]omorrow’s IPR [Intellectual Property Regime] may be no more than a logical extension of the political economy of today’s IPR regime.”), with WILLIAM P. ALFORD, TO STEAL A BOOK IS AN ELEGANT OFFENSE: INTELLECTUAL PROPERTY LAW IN CHINESE CIVILIZATION 2 (1995) (“[I]mperial China did not develop a sustained indigenous counterpart to intellectual property law, in significant measure because of the character of Chinese political culture.”), and XIN REN, TRADITION OF THE LAW AND LAW OF THE TRADITION: LAW, STATE, AND SOCIAL CONTROL IN CHINA 2 (1997) (noting China’s reluctance to enforce promulgated laws as a vestige of its “state-commanded social control efforts”). File: McCabe Final v.3.doc 2009 Created on: 1/24/10 7:11 PM THE ENFORCEMENT PROBLEM IN CHINA Last Printed: 1/24/10 7:11 PM 3 thereof, may result in stricter enforcement practices, while others may discourage or delay them. The differences between Chinese and U.S. laws and intellectual property policy development illustrate the underlying disparity between their perspectives on intellectual property rights. The United States is one of the most protective countries concerning intellectual property rights and has aggressively sought to improve intellectual property protections in China.4 However, despite the United States’ continued efforts and China’s enactment of intellectual property laws, many still perceive China as one of the largest in (...truncated)