On August 18, 2008, I joined the international law firm of Jones Day in its Beijing office.  Rather remarkably, this was 35 years after I started studying Chinese, and about 28 years after I first became involved in IPR issues in China.

When I first started studying Chinese, it was not a fashionable language.  There were less than 10,000 students of the Chinese language in all of American’s universities at that time.  Japanese and Russian were both more popular.  Many people studied Chinese as a classical or literary language. We had younger teachers from Taiwan and older teachers who had studied Chinese when they were with the military during World War II. Although relations were beginning to warm up, and some optimists projected that the language would be useful to know, in fact it had little immediate practical application.

I went to law school in 1981, just after relations were normalized, and after two years of managing student exchange programs with China. In some respects my involvement with property rights in China pre-dated my involvement with intellectual property. One of the issues that I helped out with during my time before law school involved the “unfreezing” of the property of U.S. churches and charities in China once diplomatic relations were resumed. 

In law school my classmates from China were some of the first crop of talented lawyers who later returned to China or to private practice and helped drive many of the later legal changes.  However, in the early 1980’s, there still was relatively little Chinese commercial law to talk about. We consulted the draft of the Civil Code, and we also studied traditional Chinese law.  I even took a class from Prof. Randle Edwards at Columbia on Qing Dynasty law, where we reviewed the Qing code and conducted the class in Chinese. We learned at that time that the Qing was deficient in contract and commercial law, and we hoped that China’s economic reformers would also address these deficiencies in China’s economic development.  One of the great developments we heard about at law school was that China was drafting a patent law.

In the early 80’s, I graduated from law school. The legal system was new and the volume of trade was low. I worked in Washington, D.C. doing trade-related work and IPR-related work. I wrote articles on technology transfer and legal developments in China, testified about China’s market reform in Congress, and had various investment, IPR and trade related work involving China. I also worked extensively with start up technology companies and inventors, trying to market their products or patents.  I even lobbied Congress for changes in U.S. law to assist small inventors. I also did some work in other transition economies, particularly those of Eastern Europe, and wrote extensively on those topics. I taught law in Slovenia, researched legal reform paths in former Yugoslavia and compared them to China, and I briefly served as the general counsel of a generic pharmaceutical company. It would be fair to summarize my legal practice as oriented primarily to China and other transition economies, with a focus on the protection of intellectual property rights. 

In 1999, I co-edited a book on Chinese Intellectual Property Law and Practice. The contributors were both Chinese and foreign officials and practitioners. I saw then that IPR issues in China had a future of their own. I knew that over time, China would once again become an innovative economy. I had always been deeply influenced by Joseph Needham’s pioneering work, Science and Civilization in China. As a student of history, I knew that China would affect the flow of trade and technology over time. I was also engaged at that time in some early projects to set up science parks and to license Chinese technology overseas. 

I joined the U.S. government in 2001, in the Office of External Relations of the U.S. Patent and Trademark Office.  Ironically, my principal motivation was to become more familiar with U.S. law and practice. However, shortly after I joined, I was asked to spend more time on China.  Government experience provided another window on these issues which I found invaluable.

For me the consistent theme since 1981 has been to protect the property rights of individuals and investors in a developing legal regime. I continue to look at intellectual property through the eyes of a civil lawyer. The government has an important role to play in promoting respect for intellectual property rights and for helping those who can’t help themselves, but ultimately it is up to the rights holder itself to protect its rights through civil, criminal, administrative or other means. 

I am heartened to see the development of so many talented young lawyers, and of lawyers devoted to helping the disadvantaged or promoting respect for commercial rule of law and human rights. I think protection of IPR should be viewed in conjunction with the development of rule of law generally.

For family reasons, however, I could not move to China until 2004. I did work in jobs that brought me to China before then, and helped manage the Guangzhou office of a U.S. law firm in the late 90’s. With the support of Ambassador Randt, I was able to move to China to become the first U.S. government posted from the USPTO overseas to handle intellectual property issues of a foreign country.  I think that in some respects, this was my greatest impact in the United States – creating my job, and thereby creating means for both countries to constantly engage each other in a constructive manner.  There are now proposals in Congress to expand the pioneering program I set up to include as many as 19 additional officers posted globally.

Government work gives one the opportunity to develop policies that have the widest potential impact. When I first came to China as a government official, I saw that there were considerable opportunities to improve cooperation.  The USPTO does not have decisional responsibility for Section 301 decisions, or WTO cases – in general, we offer much “softer” tools, such as technical assistance and exchanges. During my tenure, I was glad to see the development of a strategic partnership between SIPO and USPTO, and of the conclusion of MOU’s between USPTO and SAIC, and USPTO and the NCAC. I was also glad to help support the MOU’s between other agencies such as law enforcement, Customs and food and drug safety with their counterparts. Whatever one’s perspective on the WTO and TRIPS Agreement, cooperation among major trading partners in intellectual property is critical, and there is no effective substitute for many aspects of this dialogue. Moreover, during my tenure, as China’s trademark office grew to become the largest in the world, and SIPO became one of the five largest patent offices, China’s presence could not really be ignored.

There were also issues over the years that I sometimes flagged for Chinese colleagues or helped resolve in a cooperative way. I raised early and often the need for China to accede to the WIPO Internet Treaties, and I helped colleagues to recognize that we need to anticipate where China is headed and not focus only focus on today’s problems. I also helped raise the problem of cyber crime and on-line piracy early on with Chinese colleagues.  For example, an early program we conducted with the Department of Justice and Supreme People’s Procuratorate on criminal IPR issues helped establish relations between U.S. and Chinese agencies that had hardly engaged with each other previously. In many cases officials came forward later and thanked me for raising these issues before they had fully “landed” in China.  We also conducted other programs with MofCOM, SIPO, SAIC, and local governments that helped build greater mutual understanding. 

I am also greatly heartened by the welcome improvements in transparency and consultations that many Chinese agencies have undertaken in consulting with foreign companies and rights holders in drafting the new patent law, for example, or the Internet copyright regulations.

I enjoyed meeting local IP officials in places like Wuhan, Dalian, Haerbin, Changchun, Beijing, and Hangzhou, to name a few. Local officials need to translate national policy into local actions, which is not always an easy task.  I also take pride in encouraging U.S. companies to use local enforcement mechanisms, such as complaint centers in Beijing and other cities, in a cost-effective manner, which I believe also helps strengthen the enforcement mechanisms in these localities and reduces the political pressures back in the United States.

However, my greater pride comes from teaching and working with younger lawyers and officials from both countries. Because of the magnitude of the issues and the size of China, changes come from working with individual people and companies who can serve as “multipliers” to make further changes. I always thought my own individual capacity to bring change was limited, but my capacity to change by working with people of similar intentions and inclinations was not. Of course, I also learned many things from working with colleagues and teachers, like Judge Randall Rader of the Court of Appeals for the Federal Circuit, my colleagues at USPTO, and Chinese officials, judges and academics.

In talking about China’s IPR system of today, the greatest macro challenge that China is the challenge of deciding what are the correct roles of the state and individual. This is an abstract point, with important practical consequences.  Intellectual property is fundamentally a private property right, and individuals should be given the tools to protect their property rights in an effective manner. The State has an important role to play in establishing an effective system and in stepping in when the individual cannot adequately protect its rights (such as when international criminal conduct occurs) or when the harm to the social interests is much greater than harm to the rights holder (such as when counterfeit pharmaceuticals are produced).  However, in most instances, private rights holders should be at the front line protecting their own rights using effective legal tools.

Today in China most of the government resources are in administrative enforcement. There is considerable talk of the role of the state in IPR and standards setting, antimonopoly law, access to medicines, patent abuse, licensing terms, etc. Some of these are quite necessary.  However, if China wishes to truly become an innovative economy, it also needs to let individuals flourish on their own with minimal social guidance or control.  Many of the greatest innovations originated from garages in Silicon Valley, not from corporate think tanks. China’s greatest resource is its human resource – protecting the fruits of China’s rich potential for innovation is, I believe, the key to China’s future as an innovative economy. In order to achieve this goal, a key factor will be the civil law, civil procedure and robust civil enforcement.

Another impact of a public rights perspective is a focus on quantitative accomplishments. IPR protection and enforcement also needs to be looked at it qualitative terms. Statistical reports can be interesting, however, they rarely reveal the value of the assets being created or enforced.  Nearly all government reports, anywhere in the world, tend to focus on quantitative measurements. However, such data in China obscures problems with trademarks squatting or “fake” patents. In the future, I would like to see China also focus more on qualitative and analytical measurements, such as the value of assets being created and the deterrent impact of enforcement.

I left the government in 2008, and decided that I could not leave the excitement of working in China just yet. This is too interesting a period of time in China’s legal and intellectual property development.  A job should not only give you monetary rewards, it should also give you a sense of satisfaction in your personal and professional life.  When I have days of work on areas that I feel truly passionate about, I think I could continue doing this for many years ahead.

About the author:

Mark A. Cohen is the former Senior Intellectual Property Attaché of U.S. Embassy in China and is now an Of Counsel at the Beijing representative office of the international law firm of Jones Day.