In the early twenty-first century, mediation became an increasingly important way to solve IPR disputes, particularly for those cases of lower financial value. In 2003, 49.4 percent of IPR cases were resolved through pretrial mediation.21 As of 2010, that number had increased to 57.13 percent.22 An IPR judge’s comment summarized his understanding of Chinese IPR tribunals’ work:
We should not only care about the result of a patent lawsuit. More attention should be paid to the social and economic issues extending out of the lawsuit. A successful judge should not only deliver high-quality trials that can stand the test by the social public but also play his or her own role in directing the healthy development of certain industries involved. Our task is to protect inventions, but where do all the inventions come from? If there is not sufficient number of inventions, what should we protect?23
While Chinese IPR tribunals handle many more patent disputes than IPOs at different levels and are praised for delivering high-quality enforcement cases, it is unfair to conclude that the Chinese patent bureaus at various levels are weaker on the ground because they handle a lower number of cases. In fact, the IPR special tribunals and regional IPOs shoulder different tasks in the division of labor in Chinese patent work. It is true that IPR special tribunals are focused on dealing with the more complex patent cases, but that should not trivialize the role of patent bureau/IPOs in the implementation of Chinese patent policy. The next section discusses the functions of patent bureau/IPOs at different levels in China. I demonstrate that administrative enforcement is only part of the task of Chinese IPOs at different levels. More important for them is the creation of a social environment conducive to technological invention in the country. In that sense, the IPR tribunals and the patent bureau/IPOs share similar goals in China’s “patent work.”
Chinese IPOs: More Than Administrative Enforcement?
The primary administrative organ in charge of Chinese patent affairs is the State Intellectual Property Office (SIPO) and its regional offices. Some scholars have examined the organizational evolution of SIPO in a detailed way. That is, SIPO and its predecessor, the State Patent Bureau (SPB), went through several superior or “host” organizations since its establishment in 1980. These organizations include the State Science and Technology Commission (SSTC) from 1980 to 1982, the State Economic Commission (SEC) from 1982 to 1988, and the SSTC again from 1988 to 1993. In 1998, SPB was named the SIPO and acquired the status of a vice-ministerial level organization directly subordinate to the State Council.24 Scholars such as Mertha attempted to gauge the strengths and effectiveness of Chinese patent bureaucracy through the organizational history of the SPB/SIPO. Using their analysis as a foundation, I examined how the transfer from one superior or “host” organization to another informs the institutional culture of the SPB/SIPO and, possibly more important, how that institutional culture impacts the SPB/SIPO’s perception of its role in the implementation of Chinese patent policy. I found that since the early 1980s, the Chinese patent system has performed dual functions: (1) managing Chinese patent affairs in general and (2) providing guidelines for patent protection. The institutional history of Chinese the SPB/SIPO suggests that market reform in the country’s science and technology policy introduced in the early 1980s has significantly influenced its operation.
The Chinese SPB was established in 1980, with Wu Heng as its first general director. Wu Heng also held the position of SSTC vice director. As discussed in Chapter 1, the macroenvironment for SPB’s establishment was the introduction of reform and opening policy in China. At the ministerial level, the SSTC played a major role in the establishment of the SPB. In 1979, one year before the SPB was formally established, an IPR training seminar was organized to prepare the SPB with the first group of “backbone staff” (gugan chengyuan). The seminar participants were young officials and professionals in their late twenties and early thirties, but they became the elites of the Chinese IPR circle thirty years later. Among them were Tian Lipu (SIPO general director from 2005 to 2014), Li Jiahao (former vice director of the Asia Pacific Development and Cooperation Bureau, World Intellectual Property Organization), Lu Xueshi (former director of the Shanghai Branch Office of the Chinese SPB), and many other emerging young professionals who assumed influential positions in Chinese patent affairs in later decades.25
Historical archives of the 1979 Training Seminar revealed interesting details that foretold the operation of Chinese patent activities in the decades to come. As the primary organizer of the seminar, the SSTC appointed An Yutao, head of Scientific and Technological Achievement Division, to lead the day-to-day operations. Within the SSTC, some called for patent affairs to fall exclusively under the commission. But those callings met opposition from Wu Heng, the principal designer of the SPB. Wu criticized that opinion as selfish factionalism (benwei zhuyi) and insisted that young professionals with expertise in other related fields and from other related ministries should also be included. According to him,
Comrades of patent work should first have a solid background in science and technology. But that is not enough since patent work is a key component of our country’s growing economic modernization scheme. It also has important influence on our country’s growing foreign trade. Therefore, we should be well versed in international trade and international commerce. Ideally, our comrades should have a good command of at least one foreign language to meet the need for international exchange. In short, our patent cadres should be interdisciplinary talents.26
Under that rationale, the first generation of employees of the SPB was recruited from various sources. Cadres from the SSTC constituted the majority of SPB staff, joined by their colleagues from the China Council for the Promotion of International Trade, Ministry of Foreign Trade, Ministry of Education, Chinese Academy of Sciences, and various other ministries of industry. In an official document issued on January 14, 1980, the Chinese State Council clearly delineated the goals to establish the SPB as “promoting and protecting our country’s invention and innovation, enhancing international technological exchange, creating conditions for attracting foreign investment and technological knowhow, and quickening the pace of China’s economic and technological development.”27
Work toward these goals was furthered during the first decade of the SPB’s operation. By the late 1980s, China had trained over 4,000 patent agents and attorneys, 2,000 corporate patent professionals, and 2,000 patent trade professionals nationwide. As the first-generation practitioners of Chinese patent policy, the young people should be credited for institutionalizing the organizational culture of the Chinese patent system nationwide. That is, while the Chinese science and technology sector has had an indelible influence on the country’s patent activities, the country’s patent practitioners were also educated to serve the needs of the country’s economic development and foreign trade. The back-and-forth transfer from the SSTC to the SEC as the host organization for the SPB in the 1980s and early 1990s helped establish and even reinforce that institutional culture.
The operations of the Chinese patent administration could hardly be detached from the broader scenario of the country’s market-oriented reforms introduced in the science and technology sector. While the adoption of Chinese patent law was being hotly debated in the early 1980s, the country was also engaged in a thorough reform of the science and technology system established during the planned economy era. The key components of the Chinese science and technology reforms during that period were twofold: (1) diminish government intervention in the country’s science and technology sector to push the sector into the market and (2) create a technology market for transactions between research institutes and industrial enterprises.28 The establishment of a patent system served that purpose. In an article published in 1986, SSTC Director Song Jian explained the role played by Chinese patent policy in that reform scheme. According to him,
[As an important part of Chinese science and technology reform], Chinese patent policy serves