《知识产权法》课程教学资源：中国知识产权保护指数（2018）

CHINA Rank 25/50 INDICATOR SCORE Category 1: Patents, Related Rights, and Limitations of Internationa Copyrights 2 Patentability requirements 4. Pharmaceutical-related patent enforcement and resolution mechanism 5.Legislative criteria and active use of compulsory licensing of patented products and technologies 10 Trademarks 6.Patent term restoration for pharmaceutical products Enforcemen Category:Copyrights,Related Rights, and Limitations 9. Copyright (and related rights) term of protection 二 of IP Assets ights including he o/be idle necesayexcusie ihts that prevent infringement of copyrights and related 0.25 Regional Average Score Top 5 Economies Average Score 12. Availability of frameworks that promote cooperative action against online piracy 050 13. Scope of limitations and exceptions to copyrights and related rights Overall Score in Comparisor 15. Clear implementation of policies and guidelines requiring that any proprietary software used on govenment 050 CT systems should be licensed software Category 3: Trademarks, Related Rights, and Limitations 0 17.Ability of trademark owners to protect their trademarks requisites for protection 4452 18. Legal measures available that provide necessary exclusive rights to redress unauthorized uses of trademarks 19. Availability of frameworks that promote cooperative private action against online sale of counterfeit goods 21. Legal measures available that provide necessary exclusive rights to redress unauthorized use of industrial Category4:Trade andRelated Rights 22 Protection of trade secrets Strengths and Weaknesses Category5:Commercialization of IP Assets KEY AREAS OF STRENGTH 24. Barriers to market access latory and administrative barriers to the commercialization of IPassets v Patent and copyright reform extends protection and 0000 strengthens enforcement 26.IPas aneconomicasset Growing recognition and upholding of IP rights across Category 6: Enforcement different levels of government and enforcement 27. Physical counterfeiting rates agencies v Strong efforts to raise awareness of and leverage value [28 Digitalonine piracy rates of IP rights in academic and private spheres 29. Civil and procedural remedies mages and/or mechanisms for determining the amount of damages generated by KEY AREAS OF WEAKNESS copyright infringement including minimum imprisonment and minimum fines 32. Effective border measures X Interpretation of IP laws can be fragmented and out of sync with international standards 33. Transparency and public reporting by customs authorities of trade-related IP infringement x Ability to secure adequate remedies for infringement Category 7: Systemic Efficiency x Barriers to market access and commercialization 35. Consultation with stakeholders during IP policy formation x Insufficient legal safeguards, particularly for trade secrets, remain an obstacle Category 8: Membership in and Ratification of International Treaties and separate provisions on IP rights provided it was signed after WTO/TRIPS membership TOTAL 19.08 U.S. Chamber Intemational IP Index Sixth Edition

U.S. Chamber International IP Index Sixth Edition 100 90 80 70 60 50 40 30 20 10 China Top 5 Economies’ Average Score Regional Average Score Rank 25 / 50 Trade Secrets Trademarks Copyrights Patents Systemic EŸciency Membership and Ratification of International Treaties Enforcement Commercialization of IP Assets Strengths and Weaknesses KEY AREAS OF STRENGTH 3 Patent and copyright reform extends protection and strengthens enforcement 3 Growing recognition and upholding of IP rights across di¦erent levels of government and enforcement agencies 3 Strong e¦orts to raise awareness of and leverage value of IP rights in academic and private spheres 100 80 60 40 20 0 52.14 47.70 93.13 44.52 Overall Score in Comparison CHINA INDICATOR SCORE Category 1: Patents, Related Rights, and Limitations 1. Patent term of protection 1.00 2. Patentability requirements 0.75 3. Patentability of computer-implemented inventions (CIIs) 1.00 4. Pharmaceutical-related patent enforcement and resolution mechanism 0.50 5. Legislative criteria and active use of compulsory licensing of patented products and technologies 1.00 6. Patent term restoration for pharmaceutical products 0.00 7. Membership in Patent Prosecution Highways (PPHs) 1.00 8. Patent opposition 0.25 Category 2: Copyrights, Related Rights, and Limitations 9. Copyright (and related rights) term of protection 0.53 10. Legal measures that provide necessary exclusive rights that prevent infringement of copyrights and related rights (including Web hosting, streaming, and linking) 0.25 11. Expeditious injunctive-style relief and disabling of infringing content online 0.00 12. Availability of frameworks that promote cooperative action against online piracy 0.50 13. Scope of limitations and exceptions to copyrights and related rights 0.25 14. Digital rights management (DRM) legislation 0.25 15. Clear implementation of policies and guidelines requiring that any proprietary software used on government ICT systems should be licensed software 0.50 Category 3: Trademarks, Related Rights, and Limitations 16. Trademarks term of protection (renewal periods) 1.00 17. Ability of trademark owners to protect their trademarks: requisites for protection 0.50 18. Legal measures available that provide necessary exclusive rights to redress unauthorized uses of trademarks 0.50 19. Availability of frameworks that promote cooperative private action against online sale of counterfeit goods 0.50 20. Industrial design term of protection 0.40 21. Legal measures available that provide necessary exclusive rights to redress unauthorized use of industrial design rights 0.25 Category 4: Trade Secrets and Related Rights 22. Protection of trade secrets 0.25 23. Regulatory data protection (RDP) term 0.60 Category 5: Commercialization of IP Assets 24. Barriers to market access 0.00 25. Regulatory and administrative barriers to the commercialization of IP assets 0.00 26. IP as an economic asset 0.75 Category 6: Enforcement 27. Physical counterfeiting rates 0 28. Digital/online piracy rates 0.30 29. Civil and procedural remedies 0.50 30. Pre-established damages and/or mechanisms for determining the amount of damages generated by copyright infringement 0.50 31. Criminal standards including minimum imprisonment and minimum fines 0.25 32. E¦ective border measures 0.00 33. Transparency and public reporting by customs authorities of trade-related IP infringement 1.00 Category 7: Systemic E­ciency 34. Inter-governmental coordination of IP rights enforcement e¦orts 1.00 35. Consultation with stakeholders during IP policy formation 0.50 36. Educational campaigns and awareness raising 1.00 Category 8: Membership in and Ratification of International Treaties 37. WIPO Internet Treaties 1.00 38. Singapore Treaty on the Law of Trademarks 0.50 39. Patent Law Treaty 0.00 40. At least one free trade agreement (FTA) with substantive and/or specific IP provisions such as chapters on IP and separate provisions on IP rights provided it was signed after WTO/TRIPS membership 0.00 TOTAL 19.08 KEY AREAS OF WEAKNESS 7 Level of IP infringement remains high 7 Interpretation of IP laws can be fragmented and out of sync with international standards 7 Ability to secure adequate remedies for infringement remains a challenge in many cases 7 Barriers to market access and commercialization of IP 7 InsuŸcient legal safeguards, particularly for trade secrets, remain an obstacle. China Regional Average Middle Third Economies’ Average Top 5 Economies’ Averge Percentage of overall index score

Spotlight on the National IP Environment Past Editions versus Current Scores China's overall score rose from 42% (with a score of 14.83 out of 35) in the 5th edition to 48%(19.08 out of 40) in the 6th edition, due to the country's strong performance on most of the new indicators as well its enhancement of key IP protections for the life sciences ents, Related Rights, and Limitati patent examination guidelines from the State Intellectual Property Office (SIPO) came into effect. Among o to address existing uncertainty in SIPO guidance and practice about the ability to submit pe for life sciences patents. The guidance permits experim pplication. While this is a positive developn ng data is only for t only for the element o ould be interpreted to require th rily known prior to the dev addition, the new guidelines atentability criteria. The guideli am(such as an apparatus c omputer-readable 4. Pha products; and 23. Dee he kisting paten Article 16 provides for lons holder is er, the measure pute is not yet rketing. Importantly. for staying the a that a CFDA g cial that the ns the duty and d keted drug list(or itly expands RDP to as in the existing mechar protectio ar issued by the CFDA earlie se (as well as an add dditional3 opinion announces a pilot prog clinical tria delays due t e to tion, China's score wil Trademarks, Relate 18. Legal measu arks;and 21.Legal measures I design rights: Chinese patent law p patent system is out of sync with des limited critera for d a high rate of invalidations. Aco the same time, while th whie the law e abroad and the filing da or for partial designs atoo widespread in China. Alto ivent or protected designs is tive design protection, as well as additional costs and unce ade dress within the design patent system (on top of other challenges for trade dres ction in China, including fragmented protection afforded piecemeal

Spotlight on the National IP Environment uschamber.com/ipindex Past Editions versus Current Scores China’s overall score rose from 42% (with a score of 14.83 out of 35) in the 5th edition to 48% (19.08 out of 40) in the 6th edition, due to the country’s strong performance on most of the new indicators as well its enhancement of key IP protections for the life sciences. Patents, Related Rights, and Limitations 2. Patentability requirements: In 2017, new patent examination guidelines from the State Intellectual Property Oce (SIPO) came into e€ect. Among other elements, the guidelines aim to address existing uncertainty in SIPO guidance and practice about the ability to submit post-filing experimental data to fulfill suciency of disclosure requirements for life sciences patents. The guidance permits experimental data after the filing date if the data support a technical e€ect disclosed in the initial application. While this is a positive development (and China’s score for this indicator rises 0.25), some limitations remain. The allowance of post-filing data is only for the element of nondisclosure and not for other aspects of patentability. In addition, the language of the guidelines could be interpreted to require that the exact technical e€ect of the invention be disclosed in the initial claim, although this is not necessarily known prior to the development of the experimental data. It is therefore important to monitor guideline implementation. In addition, the new guidelines do not exclude business methods from patentability if they have technical features and meet other patentability criteria. The guidelines also clarify that patentable subject matter can include an invention relating to a computer program (such as an apparatus claim that includes a computer program as one aspect or a computer program linked to a storage or computer-readable medium). 4. Pharmaceutical-related patent enforcement and resolution mechanism; 6. Patent term restoration for pharmaceutical products; and 23. Regulatory data protection (RDP) term: In October 2017, the central government issued State Council Opinions on Deepening Regulatory Reforms to Encourage Drug and Medical Device Innovation, which confirmed the strengthening of the existing patent linkage mechanism in China (based on the existing Drug Registration Regulations) proposed earlier in 2017. Article 16 provides for the notification of patent holders of applications of relevant follow-on drugs (in comparison to the publishing of applications under the existing system) within a set period. It also specifically permits the initiation of patent disputes once the patent holder is made aware of the application (instead of forcing patent holders to wait until the follow-on drug is marketed). Moreover, the measure indicates that approval of the follow-on product will not take place if, “within a certain period of time,” a patent dispute is not yet resolved. Following that period, the China Food and Drug Administration (CFDA) can approve the product for marketing. Importantly, however, and in contrast to earlier CFDA proposals in 2017, the period for notifying the patent holder as well as the period for staying the approval is not provided in the opinion (the CFDA proposal specified this period as 24 months). It is encouraging that a CFDA speech made following the issuing of the opinion indicates that the intention is to resolve patent disputes before the marketing of follow-on drugs. On this basis, China’s score for Indicator 4 rises by 0.5. While these are important developments, it is crucial that the CFDA follow up with implementing legislation that includes the specific period proposed earlier in 2017 and confirms the duty and mechanisms for notification of patent holders and the staying of market approval. It is also important to implement the marketed drug list (or “Orange Book”) identified in Article 15. In addition to strengthening patent linkage, Article 18 of the opinion explicitly expands RDP to cover not only innovative drugs (with no requirement that these be limited to those first launched in China, as in the existing mechanism) but also biologics, orphan drugs, and pediatric drugs. This represents an important improvement in the scope of RDP protection, which is currently unclear and often misinterpreted by authorities. However, in contrast to the draft circular issued by the CFDA earlier in 2017, which specified a 10-year term for biologics, orphan drugs, and those modified for pediatric use (as well as an additional 3 years for new indications), the opinion does not include a specific period. In addition, in Article 17, the opinion announces a pilot program of patent term extension for a select number of innovative drugs (not specified) that face approval delays due to clinical trials and market authorization review. Until specific terms are indicated for both RDP and patent term restoration, China’s score will remain the same for these indicators. Trademarks, Related Rights, and Limitations 18. Legal measures available that provide necessary exclusive rights to redress unauthorized uses of trademarks; and 21. Legal measures available that provide necessary exclusive rights to redress unauthorized use of industrial design rights: Chinese patent law provides for general exclusive rights for design patent holders, but in a number of respects, the design patent system is out of sync with other economies’ systems and presents several often-dichotomous challenges for companies. The law provides limited criteria for obtaining design protection and no substantive review takes place, leading to many low-value patents and a high rate of invalidations. According to local legal experts, this trend has also led to a growing incidence of design patent trolls. At the same time, while the law does require absolute (worldwide) novelty, it does not provide a one-year grace period between disclosure abroad and the filing date, as is practice in many other economies. In addition, no protection is currently provided for unregistered designs or for partial designs (although the latter is included in proposed patent amendments). Finally, infringement of protected designs is widespread in China. Altogether, the system creates significant barriers to obtaining and ensuring e€ective design protection, as well as additional costs and uncertainty. It also presents diculties for companies seeking protection for trade dress within the design patent system (on top of other challenges for trade dress protection in China, including fragmented protection a€orded piecemeal

through various laws). However, there are some positive examples of rights holders achieving effective address. For example, in 2017, the Beijing IP court ruled that Apple Inc did not infringe on the Chinese company Shenzhen Baili's design patent for smartphones, and it awarded record damages to athletic company New Balance for infringement of its logo by three local companies. Still, incidences bad faith trademark filing appear to be worsening and a backlog still exists of decades of abusive filings. The courts and trademark office's efforts to address the problem may yield benefits, but so far, the tide of new filings and the resolution of old cases is an insurmountable problem for true brand development in China. 19. Availability of frameworks that promote cooperative private action against online sale of counterfeit goods: In 2017, positive evelopments occurred in terms of public-private partnerships for addressing the online sale of counterfeit good. Building on an existing private sector effort, the Ministry of Commerce has partnered with the parent company of Chinas leading online marketplace, Alibaba, in the Cloud Sword Alliance, an operation aimed at leveraging the company's anticounterfeiting technology and big data to identify counterfeit goods online and improve information available to local authorities and investigations. In 2017, as part of the Ministry of Commerce of the People's Republic of China(MOFCOM) partnership, the scope of the operation nearly tripled, from five provincial govemments to 13. Because of this unprecedented effort to address the challenge of counterfeit goods available online. Chinas score for this indicator rises by 0. 25. Nevertheless, to effectively identify and address online counterfeiting and to ensure relevant authorities act upon information identified, the operation should continue to involve rights holders Trade Secrets and Related Rights 22. Protection of trade secrets: Although the Chinese govemment recognizes the need to strengthen the protection of IP, insufficient safeguards remain an obstacle for foreign companies. China recently amended its Anti-Unfair Competition Law (AUCL), but only devotes one article to trade secrets protection. Regrettably, this can lead to a one-size-fits-all enforcement approach that may not best suit all rights conferred within the law. Moreover, under the existing legal framework, foreign companies must confront the unaddressed difficulties associated with the right to discovery, burden of proof, and protection of business confidential evidence in any alleged trade secret misappropriation litigation. Consequently, foreign companies struggle to effectively guard their tangible hnology and intangible knowledge against trade secret misappropriation. Commercialization of ip asset 25. Regulatory and administrative barriers to the commercialization of IP assets: Technology companies continue to face a growing number of regulatory and procedural barriers and inflexible terms to licensing in China that impede technology flows and ROD cooperation. In general, licensing agreements must receive government approval. In addition, technology import/export regulations involve discriminatory conditions for foreign licensors, including indemnification of Chinese licensees against third-party infringement and transfer of ownership of future improvements on a licensed technology to the licensee (whereas a Chinese IP owner is able to negotiate different terms), which restrict the ability of foreign companies to negotiate licensing and technology contracts on market terms and to fully commercialize their technology in China. U.S. Chamber International ip Index sixth Edition

U.S. Chamber International IP Index Sixth Edition through various laws). However, there are some positive examples of rights holders achieving e€ective address. For example, in 2017, the Beijing IP court ruled that Apple Inc. did not infringe on the Chinese company Shenzhen Baili’s design patent for smartphones, and it awarded record damages to athletic company New Balance for infringement of its logo by three local companies. Still, incidences of bad faith trademark filing appear to be worsening and a backlog still exists of decades of abusive filings. The courts’ and trademark oce’s e€orts to address the problem may yield benefits, but so far, the tide of new filings and the resolution of old cases is an insurmountable problem for true brand development in China. 19. Availability of frameworks that promote cooperative private action against online sale of counterfeit goods: In 2017, positive developments occurred in terms of public-private partnerships for addressing the online sale of counterfeit good. Building on an existing private sector e€ort, the Ministry of Commerce has partnered with the parent company of China’s leading online marketplace, Alibaba, in the “Cloud Sword Alliance,” an operation aimed at leveraging the company’s anticounterfeiting technology and big data to identify counterfeit goods online and improve information available to local authorities and investigations. In 2017, as part of the Ministry of Commerce of the People’s Republic of China (MOFCOM) partnership, the scope of the operation nearly tripled, from five provincial governments to 13. Because of this unprecedented e€ort to address the challenge of counterfeit goods available online, China’s score for this indicator rises by 0.25. Nevertheless, to e€ectively identify and address online counterfeiting and to ensure relevant authorities act upon information identified, the operation should continue to involve rights holders. Trade Secrets and Related Rights 22. Protection of trade secrets: Although the Chinese government recognizes the need to strengthen the protection of IP, insucient safeguards remain an obstacle for foreign companies. China recently amended its Anti-Unfair Competition Law (AUCL), but only devotes one article to trade secrets protection. Regrettably, this can lead to a ‘one-size-fits-all’ enforcement approach that may not best suit all rights conferred within the law. Moreover, under the existing legal framework, foreign companies must confront the unaddressed diculties associated with the right to discovery, burden of proof, and protection of business confidential evidence in any alleged trade secret misappropriation litigation. Consequently, foreign companies struggle to e€ectively guard their tangible technology and intangible knowledge against trade secret misappropriation. Commercialization of IP Assets 25. Regulatory and administrative barriers to the commercialization of IP assets: Technology companies continue to face a growing number of regulatory and procedural barriers and inflexible terms to licensing in China that impede technology flows and R&D cooperation. In general, licensing agreements must receive government approval. In addition, technology import/export regulations involve discriminatory conditions for foreign licensors, including indemnification of Chinese licensees against third-party infringement and transfer of ownership of future improvements on a licensed technology to the licensee (whereas a Chinese IP owner is able to negotiate di€erent terms), which restrict the ability of foreign companies to negotiate licensing and technology contracts on market terms and to fully commercialize their technology in China.