/>iOn July 29, 2024, China’s Ministry of Justice published the Regulations of the State Council on the Settlement of Foreign-Related Intellectual Property Disputes (Draft for Soliciting Public Opinions) (国务院关于涉外知识产权纠纷处理的规定（公开征求意见稿)). Per the Draft, Article 8 “encourages law firms, intellectual property service agencies, etc. to improve their foreign-related intellectual property service capabilities, establish practice institutions abroad through the establishment of branches, joint operations, etc., and provide high-quality and efficient foreign-related intellectual property and legal services to Chinese citizens and organizations.”
Further, China might be considering subsidizing these foreign branches by further stating in Article 8 that China will “take measures together with relevant departments to create conditions for law firms and intellectual property service institutions to strengthen foreign-related intellectual property services,” although no specific measures were mentioned.
Note that while China allows foreign patent firms to open up very restrictive representative offices that are specifically excluded from prosecuting Chinese patent applications, the United States does not currently impose similar restrictions on Chinese firms opening offices in the U.S. For example, well known Chinese law firm Jun He has directly prosecuted hundreds of U.S. patent applications before the USPTO.
A translation of the Draft follows. The original is available here (Chinese only). Comments are due August 28, 2024.
Article 1 These Provisions are formulated to strengthen intellectual property protection, optimize the business environment, promote Chinese citizens and organizations to handle foreign-related intellectual property disputes in accordance with the law, safeguard the legitimate rights and interests of Chinese citizens and organizations, promote high-level opening up, and promote high-quality economic development.
Article 2 The department of the State Council responsible for the management of intellectual property rights such as trademarks, patents, and copyrights (hereinafter referred to as the intellectual property management department) and the commercial department shall strengthen guidance and services to Chinese citizens and organizations in handling foreign-related intellectual property disputes, and other relevant departments of the State Council shall perform related work in accordance with their division of responsibilities.
The relevant departments of the State Council will strengthen information communication and work coordination, and jointly do a good job in handling foreign-related intellectual property disputes.
Article 3 Local people’s governments at or above the county level and their relevant departments shall, in light of the actual conditions of their respective regions, strengthen guidance and services to various entities in their respective regions in handling foreign-related intellectual property disputes.
Article 4 The intellectual property management department and the commercial administration department of the State Council shall improve the public service system of intellectual property information in accordance with their division of responsibilities, timely collect and publish information on foreign intellectual property laws and systems, and provide foreign intellectual property information query services to the public.
The judicial administrative department of the State Council shall establish and improve a database of foreign laws and regulations, take foreign intellectual property laws and regulations as important content, and collect and publish relevant information in a timely manner.
Article 5 The intellectual property management department and the commercial department of the State Council shall, in accordance with their respective responsibilities, strengthen tracking and understanding of changes in foreign intellectual property systems and key information, conduct analysis and research on typical cases, and promptly issue risk warnings or early warning information to provide the public with foreign-related intellectual property early warnings.
Article 6 The intellectual property management department and the commercial department of the State Council shall improve the guidance work institutions and work procedures for handling foreign-related intellectual property disputes in accordance with their division of responsibilities, and provide strategic guidance and rights protection assistance to Chinese citizens and organizations in handling foreign-related intellectual property disputes.
Article 7 The state supports commercial mediation organizations and arbitration institutions to participate in the resolution of foreign-related intellectual property disputes, provides Chinese citizens and organizations with efficient and convenient channels for resolving foreign-related intellectual property disputes, and guides Chinese citizens and organizations to quickly resolve foreign-related intellectual property disputes through reconciliation, mediation, arbitration and other means.
The judicial administrative department of the State Council will strengthen guidance on the mediation and arbitration of foreign-related intellectual property disputes by commercial mediation organizations and arbitration institutions.
Article 8 The state encourages law firms, intellectual property service agencies, etc. to improve their foreign-related intellectual property service capabilities, establish practice institutions abroad through the establishment of branches, joint operations, etc., and provide high-quality and efficient foreign-related intellectual property and legal services to Chinese citizens and organizations.
The judicial administrative department and the intellectual property management department of the State Council will take measures together with relevant departments to create conditions for law firms and intellectual property service institutions to strengthen foreign-related intellectual property services.
Article 9 The state encourages insurance institutions to carry out foreign-related intellectual property rights insurance business in accordance with market principles, supports enterprises in establishing foreign-related intellectual property rights protection mutual assistance funds, and reduces rights protection costs.
Article 10 The state encourages chambers of commerce, industry associations, cross-border e-commerce platforms and other organizations to build foreign-related intellectual property rights protection assistance platforms, open service hotlines, and provide public welfare services such as consultation and training.
Article 11 Enterprises shall strengthen compliance management, establish and improve internal rules and regulations, strengthen the reserve of intellectual property talents, and strengthen the protection and use of intellectual property rights; when entering foreign markets, they shall take the initiative to understand the legal system and intellectual property protection status of the country or region where they are located, carry out production and business activities in accordance with the law, and actively safeguard their legitimate rights and interests.
The intellectual property management department of the State Council, together with relevant departments, focuses on the intellectual property protection needs of Chinese enterprises in their foreign-related business activities. Focusing on key areas and key links of foreign-related intellectual property disputes, it carries out publicity and training for enterprises to enhance their awareness of foreign-related intellectual property protection and dispute resolution capabilities.
The judicial administrative department of the State Council will strengthen publicity on the rule of law related to intellectual property rights, and comprehensively enhance the awareness of Chinese citizens and organizations on intellectual property protection and their ability to safeguard their rights in accordance with the law.
Article 12 These regulations shall come into force on the XX day of 2024.
