2008 Pearl River IP Forum Achieves Breakthrough in

UNCLAS SECTION 01 OF 04 GUANGZHOU 000438 SENSITIVE SIPDIS State for EAP/CM - JYamamoto; EEB - AColeman, JBoger State for INL - JVigil USTR for China Office - AWinter; IPR Office - RBae; and OCG - SMcCoy Commerce for National Coordinator for IPR Enforcement Commerce for CIsrael Commerce for MAC 3204/ESzymanski Commerce for MAC 3043/McQueen Commerce for MAC 3042/SWilson, JYoung Commerce for NWinetke LOC/Copyright Office - MPoor USPTO for Int'l Affairs - LBoland, EWu DOJ for CCIPS - MDubose DOJ for SChembtob FTC for Blumenthal FBI for LBryant DHS/ICE for IPR Center - DFaulconer, TRandazzo DHS/CBP for IPR Rights Branch - GMcCray, PPizzeck ITC for LLevine, LSchlitt E.O. 12958: N/A TAGS: ETRD KIPR ECON PGOV CH SUBJECT: 2008 Pearl River IP Forum Achieves Breakthrough in Cooperation REF: A) GUANGZHOU 267, B) GUANGZHOU 244 (U) This document is sensitive but unclassified. Please protect accordingly. Not for release outside U.S. government channels. Not for internet publication. ¶1. (SBU) Summary: The 2008 Pearl River IP Forum - jointly organized by the U.S. Consulate's Guangzhou branch of the United States Patent and Trademark Office (PTO Guangzhou) and Guangdong Intellectual Property Office (IPO) on July 15 - brought together -- for the first time in recent memory -- business, government and the legal community to discuss the challenges of IPR protection in Guangdong. Visiting U.S. Federal Judges Kent Jordan and Larry McKinney moderated expert panels at the day-long program; their participation allowed us to arrange meetings with local judges who had previously been unwilling to discuss IPR issues. The Guangdong High Court expressed interest in expanding legal exchanges with U.S. courts. In a separate meeting, Guangdong government officials representing agencies that work on IPR issues described significant efforts in strengthening IPR enforcement in the province; however, lack of coordination among the various agencies is still a problem. End summary. Bringing All the Players Together -------------- ¶2. (U) Leading a chorus of voices from U.S. and Chinese rights holders, the Consul General opened the 2008 Pearl River IP Forum with a clear message: "Without a comprehensive and effective IP regime, international investors and domestic innovators will not remain in China, but will take their ideas and capital elsewhere in the world. The challenge for you is to keep them here. And I am confident you will meet the challenge." The day-long program, co-hosted by PTO Guangzhou and the Guangdong IPO, featured expert panels and question-answer (Q and A) sessions on the advantages of innovation and what it takes to cultivate it as well as more detailed sessions on how to litigate a China-related IP case. The forum was broke new ground for us: it was the first time the Consulate was able to gather U.S. and Chinese rights holders, government officials, lawyers and judges in one room to discuss the challenges facing IPR enforcement. Importance of Innovation Not In Question -------------- ¶3. (U) Representatives of leading U.S. and Chinese firms offered their perspectives on what the Chinese government can do to better foster and protect local innovation. -- Procter and Gamble's Brenda Panichi, Associate Director of IP-Patents-Asia, described how her company has adopted a holistic view of IP that includes not only product formularies and trademarks, but also marketing strategies and sales practices. -- Huawei Patent Department Chief Zhang Zhongqing reviewed his company's efforts to create new IP and enforce patent rights in China and other international markets. -- T.W. Liu, Senior Consultant of the Innovation and IP Division at the Hong Kong Productivity Council, pointed to the examples of several Chinese firms that have implemented advanced IP systems, which create and utilize employees' best ideas and bring them to market successfully. GUANGZHOU 00000438 002 OF 004 -- Representatives of IBM, ZTE and Cisco each explained that, without innovation and protection of their firms' intellectual property, not only would their business suffer but the entire industry might wither away. ¶4. (U) Dr. Su Weiwei, Director of the Guangzhou Quality R&D Center for Traditional Chinese Medicine at Sun Yat-sen University, grabbed the audience's attention with her frank assessment of problems in south China's IP protection for pharmaceuticals. Dr. Su said her lab had developed several new drugs in the past five years, and applied for 23 Chinese patents, with 12 patents granted so far. However, Dr. Su emphatically called on the legal and government communities to improve their service levels for innovators, simplify filing and other registration procedures, and reduce filing costs. Without systemic improvements, Dr. Su said that she and other researchers would continue wasting valuable energy navigating the patent process and negotiating with customers about patent-related issues rather than focusing on their core business of developing new medical treatments. ¶5. (U) Guangzhou Vice Secretary General Chen Shaokong and Guangdong IPO Deputy Director General Zhu Wanchang responded to the call from rights holders for stronger protection by touting recent IP initiatives. They also repeated higher-level political statements about the need for greater attention to domestic innovation and increased protection of existing IP rights. Chen said Guangzhou led the province with its March announcement of a three-year municipal plan to invest RMB 1 billion annually in innovation-related projects. Zhu told the audience that IP cannot be separated from a strong economy and emphasized Guangdong Governor Huang Huahua's recent calls for better IP protection and increased international cooperation (Note: Party Secretary Wang Yang also made a similar comment in a meeting with the Ambassador on July 18. End Note.) Litigating a Chinese IP Case -------------- ¶6. (U) Another first of the forum was the detailed and public discussion among Chinese and U.S. legal professionals on the process of litigating a Chinese IP case. Three separate panels were followed by lively Q and A sessions covering how and why to litigate in China versus other jurisdictions, how to prepare evidence and present a case, and considerations to take into account when deciding whether to appeal a judgment. Visiting U.S. Federal Judge Kent A. Jordan of the United States Court of Appeals for the Third Circuit in Wilmington, Delaware and Judge Larry J. McKinney of the United States District Court for the Southern District of Indiana in Indianapolis, Indiana participated in the program. Each moderated a panel that included Chinese attorneys and international lawyers jointly presenting detailed recommendations on how to choose a jurisdiction, select the type of complaint that would best be supported by the facts of a case, and craft a case around the plaintiff's desired outcomes. ¶7. (U) One lesson many in the session agreed on was that IP cases in China are made more difficult by the lack of comprehensive rules of evidence, which has repercussions throughout the litigation process. When asked about his biggest challenge litigating in China, Shanghai-based American attorney Geoffrey Lin said the lack of a discovery process or unified rules of evidence, and rules that GUANGZHOU 00000438 003 OF 004 generally preclude reliance on witness testimony make it particularly challenging to litigate IP cases here. Chinese attorney Zhang Shaojun elaborated on Lin's comments, describing trademark cases as the easiest to prove, followed by patent cases in which the subject matter is not too technical. Zhang concluded that copyright and trade secret cases are much more difficult to prove, sometimes even impossible, because plaintiffs lack the power to compel defendants to testify or produce evidence. Guangdong High Court Wants More Legal Exchanges -------------- -- ¶8. (SBU) In a separate meeting the day before the conference, Appellate Judge Jordan and District Judge McKinney met with Judge Ling Qiman, Vice President of the Guangdong High Court, as well as three other judges from the intellectual property division of the Guangdong High Court -- the first time in two years the Consulate has been able to meet with judges on the court. Judge Ling concurrently serves as President of the Guangdong Judicial Training Center. He visited Los Angeles in 2006 to participate in legal exchange programs and said the experience had been a valuable one. Judge Ou Xiuping, Deputy Chief of the Guangdong High Court Intellectual Property Division, said he also learned much during a June 2007 trip to Washington, D.C., in which he sat on a panel with Judge Randall R. Rader. (Note: Judge Rader is an Associate Judge of the United States Court of Appeals for the Federal Circuit in Washington, D.C. End note.) The judges expressed interest in expanding exchanges with U.S. counterparts. Judge Ling described his court's budget for training and exchange programs as larger than courts in less-developed provinces, suggesting strong potential to expand our cooperation on exchange programs in both directions. ¶9. (SBU) Judge Ling said an average of 4,000 IP cases are filed in Guangdong each year, ranking it first in China. Copyright cases are most common. There are 15 Guangdong provincial courts designated to handle IPR cases, of which 8 are certified to hear patent cases. Judges receive special training when assigned to IP courts and then receive further training each year. Judge Ling acknowledged differences between U.S. and Chinese court procedures for handling IP cases, however, he noted that the Guangdong Provincial Government is currently discussing the establishment of an experimental IP court that would cover all three types of Chinese cases - administrative, civil, and criminal - a departure from the current system that would make it more consistent with U.S. practices. Interagency IPR Group Describes Accomplishments -------------- -- ¶10. (SBU) An interagency group of Guangdong provincial IPR officials in a separate July 14 meeting with the U.S. judges described their recent accomplishments in strengthening IPR protection. -- GD IPO Deputy Director General Zhu Wanchang led the group, which included representatives of the Intellectual Property Office (IPO), Culture Bureau, Copyright Bureau, Administration for Industry and Commerce (AIC),Technical Supervision Bureau (TSB),Customs Bureau and Public Security Bureau (PSB). -- Wang Yequn of the Culture Bureau said his agency's dedicated copyright enforcement team had grown from 300 in 2006 to 1,300 in 2008, helping to increase monitoring and enforcement capacity for cases of traditional and on-line copyright infringement. GUANGZHOU 00000438 004 OF 004 -- Guo Xiuwen of the Copyright Bureau described the agency's numerous public-awareness activities. -- AIC's Wu Lichao said his bureau recently had improved its ability to track trademark cases and transfer them between offices and other government agencies. -- Customs Inspector Wang Jun said his agency increasingly relies on a risk-management process to identify suspicious shipments, accounting for 20 percent of recent IP cases. -- PSB Officer Chen Zhaojian ended the meeting by describing recent training and collaborative efforts undertaken by the 1,500 officers involved in Guangdong's IP-related law enforcement activities. ¶11. (SBU) Comment: Taken together, the list of accomplishments gives us hope that Guangdong is, in fact, strengthening IPR protection. However, the fractured nature of the province's IPR program spread across so many separate agencies underscores the fact that insufficient coordination and inconsistency remain obstacles to the creation of a more effective system for IPR protection. Nevertheless, the willingness of the provincial government to gather all of the agencies together to meet with us may be a sign of progress toward a more unified approach. GOLDBERG