China Acts To Boost Patents On Publicly Funded Research

By Jia Hepeng for Intellectual Property Watch
BEIJING – In a renewed effort to boost innovation, China has decided to endow scientists with the patents on publicly funded research, but experts say systematic adjustment is needed if the incentive is to achieve its desired effect.

On 29 December, China’s legislature – the standing committee of the National People’s Congress (NPC) – passed the amendments to its 1993 Science and Technology (S&T) Progress Law, which was marked as a basic law guiding science, technology, and innovation activities in the country.

A major feature of the new law, to take effect on 1 July, is the stipulation that China will adopt a strategy on national intellectual property rights to speed the commercialisation of research results, according to Li Yuan, director of the NPC’s administrative law office.

As a concrete element of the strategy, the new S&T law allows scientists or their institutions who have implemented the publicly funded research projects to benefit from the patents originating from the projects, unless these patents involve key national interests or reveal state secrets.

Zhu Xiaomin, a researcher at the Institute of Policy and Management of the Chinese Academy of Sciences (CAS), said the endowment of patents might have been practiced informally in some institutions, but the legal amendments legitimise this practise so that it may be widely applied.

Li explained at a press conference on the new S&T law held on 29 December that the law not only offers patents to researchers as an incentive, but also creates a flexible condition for the patent applications.

According to Li, the original draft stipulated that the patents would be retracted by the government if not used in two years, but in the final version, the government will not take back the patents unless their holders do not use them within “a reasonable period.”

“Patents from scientific research are a complicated issue, and we create the looser stipulations to encourage researchers to use them in a favourable timing,” said Li.

The patent regulation potentially could be a major boost even to scientists of basic research areas.”In our research, new testing and analysing technologies could often emerge as by-products,” said a scientist at CAS’ Institute of Chemistry who asked not to be named. “With the patent regulation, some of them could be commercialised to bring potential benefits.”

But Shen Hong, an IPR lawyer and a partner at Beijing Longan law firm, said the new S&T law might be inconsistent with the current patent law, which is based on the principle that the state should enjoy the patent produced from the money it uses.

“With the logic of the current patent law, research institutes – which are mostly state-owned in China – will naturally own the patents from the public research funding, unless they have agreed to give the patents or parts of its benefits to researchers in advance,” Shen told Intellectual Property Watch.

Shen said that in order to realise the new S&T law’s principle of encouraging innovation by giving researchers patents, the patent law should be revised to give natural persons an equal footing to the government in enjoying patent rights.

As stated, it may not be enough to make scientists positively pursue and promote patents which originated from their research.

“Although the patents could be given to individual scientists, most of us are unlikely to apply and use them,” said the CAS chemistry institute researcher.

Currently, the system to evaluate research achievements only stresses the number of papers published in high-impact journals, he said, adding that for scientists this is much easier, and few would choose to advance the “accidentally obtained” patents amidst market uncertainties.

Breakthrough for patent law?

Separately, Yin Xintian, the spokesperson of the State Intellectual Property Office (SIPO), said on 14 January that the revision of China’s patent law is expected to make a major breakthrough this year.

According to Yin, in 2007, SIPO received 694,153 patent applications, rising 21.1 percent over the previous year. Despite this growth, only about one-third (245,161 applications) were for inventions, with the remaining applications for either utility models (181,324) or designs (267,668).

Jia Hepeng may be reached at info@ip-watch.ch.