Patent Reform With Chinese Characteristics
Ronald A. Cass长期以来，中国人在吸收别国创造发明的同时一直试图保护本国的发现。中国古代流传下来的宝贵技术在相当长的时期内一直对外界密而不宣。比如，中国的造纸和丝绸技术分别经过1,000年和2,000年之后才被欧洲人所掌握。与此同时，中国也没把外国人保护他们自己发明创造的措施放在眼里，迫不及待地借用他们的先进技术，从汽车到娱乐软件，不一而足。伴随着急速增加的成功创新而来的是异常惊人的盗版速度。Associated Press中国去年12月底通过的《专利法》第三次修订稿，正体现出了这些相互矛盾的态度，以及它们在中国导致国内外发明创造者处于极不公平的竞争环境的可能性。新法规将于今年10月开始实施。这次修订始于2005年，当时是国家知识产权局为阐释《专利法》相关条规鼓励发明创造消除与国际规则之间的冲突而开展的行动。许多修订内容的影响尚取决于主管部门和法院方面如何来解释。如何在保护创新和占有创新成果之间达成平衡对中国和世界的繁荣将产生重大影响，创新和贸易这两架发动机给人类的繁荣提供了强大动力。自中国颁布《专利法》以来的25年间，中国基本上一直在试图平息西方国家对侵犯知识产权行为四处蔓延的不满。欠发达国家常常试图在摘取别人已有成果的同时保护本国的成果，从而达到惠己的目的。美国是较晚加入国际知识产权公约的国家，且曾被欧洲国家指责不尊重他们的知识产权。在中国，任何财产所有权都是模棱两可，更不用说知识产权，这种态度更充分体现出大多数发展中经济体在保护外国专利持有人权利上的消极。《专利法》第三稿颁布实施后将发生一系列复杂的变化。一些修改是为鼓励中国的创新活动，保护真正的创造性成果，比如对由跨境研究机构实现的创新成果加大保护。虽然修改稿还不完善，但这些变化总的来说似乎还是积极的。采用“绝对创新”标准则是朝着正确方向迈出的又一步，应能阻止将专利授予那些实际上从国外“盗取”发明的中国申请人。根据这一标准，一项发明之前必须是全世界都没有的，而不是仅仅是中国没有。这就排除了将一项已在其他国家公布的发明专利授予中国申请人的情况。堵住这样一个漏洞是重要的一环。不过，从另一方面讲，《专利法》第三稿也有不恰当的改变。最糟糕的变化之一是有关强制许可的条款。这些条款容易造成许可发放权的扩大化，它允许政府在未得到专利持有人同意的情况下，向任何有能力在获得专利技术后生产相关产品的人发放许可。修正稿规定，如果在获颁专利满三年或者提交专利申请满四年后，专利持有人被发现没能“充分”的“应用”专利且“无正当理由”，或者如果专利被发现限制了竞争，允许对专利发放强制许可。这方面的某些问题属于技术性的，比如这些条款的时间规定违反了《保护工业产权巴黎公约》(Paris Convention for the Protection of Industrial Products)，中国是该公约的缔约国。但更大的问题是，修订稿对作为这些条款内容核心的创新投资的保护却持一种随意的态度。强制许可对专利赋予的基本知识产权--包括在一段设定时期内控制专利的使用决定谁将使用专利及使用条件--构成了威胁。因此，一直以来它就被限制使用，以防滥用专利制度。最明显的例子是专利持有人无法获准销售专利产品。制作专利产品的专有权是一项明显可知的交换的一部分--专利发明人获得了专利保护，公众则有机会用到新产品。专有权能鼓励创新投资，但只有在专利持有人愿意将新产品投入到公众领域之后，公众才能受益于这种创新。长期以来，包括《贸易相关知识产权协议》(Agreement on Trade Related Aspects of Intellectual Property)在内的国际公约就承认政府在专利持有人不让新产品进入公共领域而公众又有迫切需求的情况下发放强制许可的权利，例如当爆发一种流行性疾病时，某项能治愈这种病的专利之前很久就颁发了，但专利持有人拒绝销售这种产品。虽然《贸易相关知识产权协议》中的这项保护措施被弱化了，但这仍是一个基本规则。不过，新版《专利法》中有关决定使用强制许可的规定在“充分”使用专利持有人的“正当理由”等处出现了含糊的标准。除非国家知识产权局就实施和执行这些含糊的条款作出明确规定，否则专利持有人将经常面临风险。如果产权局对条款作出解释且法院要求在中国生产专利产品而不是进口，或要求以某个特定价格或特定数量销售这些产品，最后可能导致将给专利权带来任意损害的自由裁量权违反《贸易相关知识产权协议》，并威胁到保护创新的整体环境。此外，规定中有关干扰竞争的用语不够严密，也会带来类似的风险。从历史上看，政府部门喜欢动用自由裁量权保护中国公司，并给强有力的外国竞争对手设置障碍。随着全球经济危机走向深入，这种诱惑也会增大。而如果中国屈从于这种诱惑，它将减少其获得创新的机会，加剧经济危机，破坏法治。（编者按：本文作者Ronald A. Cass是波士顿大学法学院荣誉退休院长Cass协会主席，曾担任美国国际贸易委员会副主席。）
Ronald A. CassChinese leaders long have sought to protect their own discoveries while absorbing others' creative work. Prized Chinese technologies from ancient times were kept secret from outsiders for extraordinarily long periods. Techniques used to produce writing paper and silk, for example, were not discovered by Europeans for 1,000 and 2,000 years, respectively, after their introduction in China. Yet China also distrusts foreigners' efforts to protect their own inventions and eagerly appropriates Western technological advances, from automobiles to entertainment to software. Astronomical rates of piracy co-exist with sharply increasing success at innovation.Those conflicting attitudes and their potential to create a very uneven playing field for domestic and foreign creators in China are on display in the Third Amendment to China's patent law approved in late December. This amendment, which goes into effect in October, began in 2005 as an effort of the State Intellectual Property Office to clarify aspects of the law, promote invention and eliminate some conflicts with international rules. The effect of many of the changes will not be clear until the administering authority and courts speak. How the balance between protecting innovation and commandeering innovations is struck has powerful implications for China's and the world's prosperity, which have been powered by the twin engines of innovation and trade.China's patent law evolved over the past 25 years largely from efforts to quiet Western nations' complaints about rampant theft of intellectual property. Less developed economies often seek to advantage themselves by protecting national champions while taking the fruits of others' inventiveness. The United States was a latecomer to international intellectual property accords and was accused by Europeans of disrespect for their rights. China's ambivalence about ownership of any property, much less intellectual property, magnifies the reluctance of most growing economies to protect rights of foreign patent holders.The Third Amendment will enact a complex set of changes. Some are designed to encourage innovation in China and protect genuine inventiveness, such as increased protections for innovations created by cross-border research efforts. While not perfect, these changes seem generally positive. Adoption of an 'absolute novelty' standard is another step in the right direction and should stop patent grants to Chinese applicants who were effectively 'hijacking' inventions from abroad. Under this standard, an invention must be new to the world, not just to China, precluding patent grants to a Chinese filer for an invention already disclosed elsewhere. Closing that loophole is an important step.In other ways, however, the Third Amendment takes a wrong turn. One of the worst offenses comes in provisions for compulsory licenses. These support expansive authority for the state to issue licenses, without the approval of the patent holder, to anyone who is able to produce the product once given access to the patented technology. The amendment allows compulsory licensing if, after three years from the grant of a patent or four from the filing of a patent application, the patent holder, 'without proper justification,' is found not to have 'exploited' the patent 'sufficiently,' or if the patent use is found to restrict competition. Some of the problems in this are technical -- like the fact that the timing in the provisions violates the Paris Convention for the Protection of Industrial Products, an international agreement to which China is a party. But the bigger issue is the casual attitude toward protecting investment in innovation that is at the heart of these provisions.Compulsory licensing threatens the fundamental property right that patents confer -- the right to control the use of an invention for a set period of time, to decide who will use it and on what terms. For that reason, historically it has been restricted to preventing clear abuses of the patent system. The most obvious example is the failure of a patent holder to allow the sale of a patented product. The exclusive right to make a patented product was part of an eminently sensible exchange -- the inventor got patent protection and the public got access to the new product. Exclusivity rights encourage investment in innovation, but the public only receives benefits from the innovation if the patent holder is willing to put the new product into the public domain.International agreements, including the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), long have recognized governments' right to issue compulsory licenses if the patent holder doesn't make the new product publicly available and there is a compelling public need -- think of an epidemic that occurs well after a patent has issued for the cure but with the patent holder refusing to make any sales. Despite efforts to water down TRIPS protections, this remains the basic rule.Under China's new law, however, compulsory licensing decisions turn on opaque standards such as 'sufficient' use of patents and 'proper justification' for patent holders' decisions. Unless the State Intellectual Property Office adopts clear, specific rules for implementing and enforcing these vague instructions, patent holders will be constantly at risk. If the terms are interpreted by SIPO and China's courts to require production in China, as opposed to importation, or to require sale at particular prices or in particular quantities -- all of which have been advocated by opponents of strong patent rights -- the end result could be discretionary power to vitiate patent rights virtually at will, violating TRIPS and threatening the entire framework for protecting innovation. Similar risks are inherent in the imprecise language respecting interference with competition.If history provides guidance, officials will be tempted to use discretionary power to protect Chinese firms and to handicap the strongest foreign competitors. That temptation will grow as the global economic crisis deepens -- and if China gives in to that temptation, it will diminish its access to innovations, aggravate the economic crisis and undermine the rule of law.(Editor's Note: Mr. Cass is dean emeritus of Boston University School of Law, president of Cass & Associates, and former vice-chairman of the U.S. International Trade Commission.)
Ronald A. CassChinese leaders long have sought to protect their own discoveries while absorbing others' creative work. Prized Chinese technologies from ancient times were kept secret from outsiders for extraordinarily long periods. Techniques used to produce writing paper and silk, for example, were not discovered by Europeans for 1,000 and 2,000 years, respectively, after their introduction in China. Yet China also distrusts foreigners' efforts to protect their own inventions and eagerly appropriates Western technological advances, from automobiles to entertainment to software. Astronomical rates of piracy co-exist with sharply increasing success at innovation.Those conflicting attitudes and their potential to create a very uneven playing field for domestic and foreign creators in China are on display in the Third Amendment to China's patent law approved in late December. This amendment, which goes into effect in October, began in 2005 as an effort of the State Intellectual Property Office to clarify aspects of the law, promote invention and eliminate some conflicts with international rules. The effect of many of the changes will not be clear until the administering authority and courts speak. How the balance between protecting innovation and commandeering innovations is struck has powerful implications for China's and the world's prosperity, which have been powered by the twin engines of innovation and trade.China's patent law evolved over the past 25 years largely from efforts to quiet Western nations' complaints about rampant theft of intellectual property. Less developed economies often seek to advantage themselves by protecting national champions while taking the fruits of others' inventiveness. The United States was a latecomer to international intellectual property accords and was accused by Europeans of disrespect for their rights. China's ambivalence about ownership of any property, much less intellectual property, magnifies the reluctance of most growing economies to protect rights of foreign patent holders.The Third Amendment will enact a complex set of changes. Some are designed to encourage innovation in China and protect genuine inventiveness, such as increased protections for innovations created by cross-border research efforts. While not perfect, these changes seem generally positive. Adoption of an 'absolute novelty' standard is another step in the right direction and should stop patent grants to Chinese applicants who were effectively 'hijacking' inventions from abroad. Under this standard, an invention must be new to the world, not just to China, precluding patent grants to a Chinese filer for an invention already disclosed elsewhere. Closing that loophole is an important step.In other ways, however, the Third Amendment takes a wrong turn. One of the worst offenses comes in provisions for compulsory licenses. These support expansive authority for the state to issue licenses, without the approval of the patent holder, to anyone who is able to produce the product once given access to the patented technology. The amendment allows compulsory licensing if, after three years from the grant of a patent or four from the filing of a patent application, the patent holder, 'without proper justification,' is found not to have 'exploited' the patent 'sufficiently,' or if the patent use is found to restrict competition. Some of the problems in this are technical -- like the fact that the timing in the provisions violates the Paris Convention for the Protection of Industrial Products, an international agreement to which China is a party. But the bigger issue is the casual attitude toward protecting investment in innovation that is at the heart of these provisions.Compulsory licensing threatens the fundamental property right that patents confer -- the right to control the use of an invention for a set period of time, to decide who will use it and on what terms. For that reason, historically it has been restricted to preventing clear abuses of the patent system. The most obvious example is the failure of a patent holder to allow the sale of a patented product. The exclusive right to make a patented product was part of an eminently sensible exchange -- the inventor got patent protection and the public got access to the new product. Exclusivity rights encourage investment in innovation, but the public only receives benefits from the innovation if the patent holder is willing to put the new product into the public domain.International agreements, including the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), long have recognized governments' right to issue compulsory licenses if the patent holder doesn't make the new product publicly available and there is a compelling public need -- think of an epidemic that occurs well after a patent has issued for the cure but with the patent holder refusing to make any sales. Despite efforts to water down TRIPS protections, this remains the basic rule.Under China's new law, however, compulsory licensing decisions turn on opaque standards such as 'sufficient' use of patents and 'proper justification' for patent holders' decisions. Unless the State Intellectual Property Office adopts clear, specific rules for implementing and enforcing these vague instructions, patent holders will be constantly at risk. If the terms are interpreted by SIPO and China's courts to require production in China, as opposed to importation, or to require sale at particular prices or in particular quantities -- all of which have been advocated by opponents of strong patent rights -- the end result could be discretionary power to vitiate patent rights virtually at will, violating TRIPS and threatening the entire framework for protecting innovation. Similar risks are inherent in the imprecise language respecting interference with competition.If history provides guidance, officials will be tempted to use discretionary power to protect Chinese firms and to handicap the strongest foreign competitors. That temptation will grow as the global economic crisis deepens -- and if China gives in to that temptation, it will diminish its access to innovations, aggravate the economic crisis and undermine the rule of law.(Editor's Note: Mr. Cass is dean emeritus of Boston University School of Law, president of Cass & Associates, and former vice-chairman of the U.S. International Trade Commission.)