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?
