Industry Standard – Emerging from a Unified Understanding

Issue 32,By Zhou Yi, China IP,[Patent]

Lin Bonan casually flipped through the blue-covered book in his hand. It was titled the Service Standard for Patent Agency (For Trial Implementation) (hereinafter referred to as the Standard) promulgated on August 25, 2009.

Over the past one and a half years, he and Yu Gang, the managing partner of Kangxin Partners, P.C., have been dedicated to its compilation and promulgation. They initiated meetings, nominated writers, proofread the full text, solicited opinions, made further revision, and finalized the book.   

  Although the Standard consumed one and a half years of preparation, 20 writers’ painstaking effort and a high word volume, Li Bonan emphasized that the compilation of this book was not difficult at all. After the framework was set, the content was easily inserted. The most difficult part was to make every one reach a common understanding, because they all had their own scruples in the drafting.     

The initial worries

At the end of 2007, Lin Bonan was nominated by the All-China Patent Agents Association (ACPAA) for membership on the “Industry Standard Committee”. Yu Gang was also a member. They cooperated with ACPAA in drafting of the Standard under the general coordination of the latter.    
“Formulation of this standard is a top-down campaign, aiming at solving some practical issues,” said Lin.

Before the publication of the Standard , the earlier promulgated Development Plan for Patent Representation Service from 2009 to 2015 had stipulated that one of the special tasks was “to formulate and publicize a service standard for patent agency industry, to guide patent agencies and representatives to carry out the business, to standardize the service actions of patent agencies, to strengthen the management of patent agency industry, and to guarantee the service quality of patent attorneys and similar services…”
At the end of 2007 and the beginning of 2008, Lin frequented meetings to discuss whether it is necessary to draft a standard and how to draft it. The process was later confirmed this way: Lin drew the framework, and then different agencies were assigned to complete different parts. Subsequently, he and Yu Gang combined the elements, and ultimately the ACPAA finalized the version and adopted it.   

  As for the necessity, Lin said: “The need is pretty obvious. Actually discussion it had no meaning. They discuss because they have scruples. ”  

  However, such principles became the biggest bottleneck throughout the drafting process. Yu Gang told this journalist: “Agencies involved in the writing had misgivings. They were afraid that what they wrote in the Standard would disclose their business secrets to others, especially to their competitors.”

To reassure the writers, Lin Bonan and Yu Gang set one of their initial tasks as “to unify their understanding”.

Lin and Yu have to unify their own understanding at the beginning, because they also  have such kind of worries. He said, “We can compare the compilation of the Standard to the making of Chinese medicines by pharmaceutical factories. To make ‘cow-bezoar antitoxic bolus’ for instance, but different factoried make different medicines according to their methods. Now the trade association decides to set up a standard and asks those best performing factories to provide their prescriptions, as the criteria in the standard. In this way, these factories tell their competitors the secret prescription of their medicines. This is a kind of new understanding of the competition relationship. Since your prescription represents the standard, you must provide it.”  

  Besides worrying about of the disclosure of business secrets, some senior agencies were unhappy at setting up such a standard because it would grant a shortcut for those who later entered this profession.   

  “China’s IP system has gone through three decades of development, with a high cost for achievement. Agencies have a deeper resonance with this. Sometimes a very simple sentence in this Standard lays a long story or a bitter lesson. So we should not criticize them for their ‘selfishness’”, Lin said, “Worries are not a big deal. It is simply an expression of discontent. I believe they will put themselves on the industry level and realize the importance of forming this Standard.”      

  Both Lin and Yu believed that before the writing was formally initiated, common understanding of the Standard was a must, although only the first step in the long march. 

Understanding and application of the minimum standard

  At the beginning of 2008, ACPAA secretariat began to look for agencies to write the Standard. There were two criteria for selection: the business scope and working experience of the agencies. At last, the writers are form patent agencies in different places with abundant experience. “Writing the Standard was not a ‘fat job’. Our intention was to call together people with different experiences to finish the work in the best way”, said Lin.   

  After the writers were confirmed, the writing began. 

  In spring of 2008, Lin Bonan set out to outline his work, which had two functions: one was to set up a boundary for each part, and the other was to allocate the work conveniently. Lin spent nearly two months to finish this job. He claimed it as one of the most time and energy consuming parts in the whole process.

  Then each part was given to the writers who either volunteered or by designation. Yu Gang also participated in the writing. Although with rich foreign service experience, Yu chose the relatively complicated “domestic-to-domestic application” part. He said: “Actually, ‘domestic-to-foreign’, ‘foreign-to-domestic’, ‘domestic-to-domestic’ applications are all within my knowledge. But I think that ‘domestic-to-domestic’ application is most frequently used and most important. I want to make this part perfect.”    

  However, the practical work confused Yu Gang as well as others: To what degree shall they endeavor? How shall he and Lin Bonan combine the works of different people and make it consistent?

   “We had to hold more meetings to level the different comprehensions”, said Lin with a smile, “in our planning it was a minimum standard, neither too profound nor too superficial. Too profound, it was impractical; too superficial, it was ineffective - indeed difficult to command.”   

  Lin Bonan gave another illustration: “The Standard is more about governing rules and general procedures. It is like when you are performing a surgery, it tells you how to manage your instruments and how to prepare. As to the detailed procedures of the operation, it gives you no instruction. ” 

  Besides profundity, detail was another issue to be predetermined. Yu told this journalist: “It’s impossible to set a yardstick. I tried to make it as detailed as possible, so that deletions could be made in later revisions.”

  It was not difficult to level the comprehension. However in practice, previously reached understandings were usually represented in different ways. Then Lin Bonan and Yu Gang had more work to do. Lin recalled: “The agents and attorneys we chose were all professional and experienced. There was nothing incorrect in their writings. The problem is that some are very detailed, and some very simple. I remember one writer put his part as operational details, instead of the governing rules as he was told. I thought it’s not necessary.”

  During the following summer, the two unifiers began “to combine the different parts and make them consistent” work under the coordination of the secretariat. This was another time and energy-consuming period. After the writing was finalized, the long time opinion solicitation process followed. Discussions were made within the Standing Committee of the ACPAA. “Many opinions were raised. I accepted some, and excluded the others, such as the draft”, Lin said. After the first round of revision was finished, the ACPAA held another opinion solicitation meeting with more than 200 people present. The opinions were referred back to the standing committee for further discussion. Finally, the committee finalized the draft. On August 25, 2008, and the Standard was promulgated.  

  Lin and Yu had another concern once the printed Standard came out. The Standard is now for trial implementation. After one year, it will be compulsory. But it’s quite possible that the required force will come earlier. With this Standard, both right owners and clients can easily evaluate the performances of agencies. So it’s also quite possible that more complaints and disputes will arise.   

  “I think clients really need such an evaluation criterion. For example, confidentiality is a most basic principle in a patent agency, but is always overlooked. Clients are sometimes ignorant of their own rights. Now this principle is clearly stated in this Standard. I think we are doing a good thing for the development of this industry”, said Yu.

Counterparts of the Standard and its future

  “There is no such a written patent agency standard in the United States, but honest rules and moral standards are found many”, said Cohen, former IP commissioner of the U.S. Embassy in China.

  “Some rules in the U.S. are even more rigorous than ours, because the IP industry there is much better developed. Some rules, such as the principle of confidentiality, have already become a convention. But in China, our patent agency industry can neither trace a long history back nor find a solid foundation. Therefore, we need a written standard to discipline it”, said Yu Gang.

  Lin echoes Yu’s opinion. He thinks that this Standard is an outcome of the transitional period of the patent agency industry from nonexistence to prosperity. The rapid expansion of this industry has divorced itself from the normal road of development. Therefore it presses for a guideline to guide those new comers to the right road.   

  “The patent agency industry will be differentiated in the future. To the very end, people’s comprehension will come back to the full understanding of the profession itself.”, said Lin Bonan.  

  “The patent agency industry is now faced with such problems as incomplete service items and bad service quality. I think eventually it will fall under the control of the market”, said Cohen.

(Translated by Hu Xiaoying)

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