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by Jeffrey Chang, NAIP Editorial

On 29 July 2010, amid much political support, political protest and media frenzy over the signing of the Economic Cooperation Framework Agreement, Taiwan and China officials also quietly signed the "Cross-Strait Agreement on Intellectual Property Rights Protection and Cooperation" (IPR Agreement). Over the past decade, as economic relations between Taiwan and China have increased, intellectual property (IP) has gained in prominence in both business and political discussions. Both sides have long spoken of addressing shortcomings in IP collaboration and the signing of the IPR Agreement sets important goals that both wish to accomplish. However, even a general guideline on how to proceed has yet to be produced and much remains to be discussed and determined.

Two Markets, Two Systems

Since the Nationalist party fled to Taiwan in 1949, IP has remained one of the many complicated and unresolved issues. Both Taiwan and China implement their own IP systems. Both administer their own patents. Both are important participants in the global IP industry. However, neither acknowledges the validity of each other's patents. This means a Taiwan patent cannot be enforced in China—and vice versa. Most significantly, priority rights are not recognized. Copyrights, trademarks and plant variety rights also face similar issues, with added complications including copyright authentication and interpretation over well-known places names or well-known brands.

A Framework Agreement

The IPR agreement has been touted as a "framework" for future collaboration between Taiwan and China. The purpose, goals, benefits and subjects covered in the agreement can be found in the TIPO press release here. Briefly, the agreement aims for:

  1. Mutual recognition of priority rights for patents, trademarks and plant varieties.
  2. Establishment of mechanism to combat illegal IPR activities.
  3. Establishment of a formal communication platform.
  4. Copyright authentication service based in Taiwan (currently being done in HK).
  5. Search and examination results-sharing

Overall, the agreement touches upon a broad and wide range of IP areas from improving protection to increasing opportunities for economic development. In addition, many goals—such as copyright, trademark or even patent "squatting"—were written directly to address concerns of IP holders in Taiwan. Both sides have planned ambitiously, which is in line with the current Taiwan government's view that China is an integral part of Taiwan's economic future.

Collecting Public Opinion

After signing of the IPR agreement, the Taiwan Intellectual Property Office (TIPO), together with the Chinese National Federation of Industries, hosted a symposium to hear the thoughts, opinions and suggestions of the Taiwan Public. The two-day event, from 14-15 of July, was split into four discussions, covering:

  1. Trademark & Geographic Indicators
  2. Copyrights
  3. Patents, Technology Transfers & Trade Secrets
  4. Prevention of Piracy and Counterfeiting

At each event key members of both TIPO and China's State Intellectual Property Office (SIPO) were on hand to briefly explain the IPR agreement and listen to participants' opinions, suggestions and concerns. Although no decisions were made on how to proceed with the goals stated, the discussions provided an excellent window into the attitudes, frustrations and expectations of Taiwanese organizations dealing with IP in China. Many shared stories about difficulties encountered with applying for IP rights, enforcement, and dealing with the substantial experience gap between two patent offices. Overall, the symposium was a valuable source of experience sharing and learning about the successes and failures in dealing with IP in China.

First Steps on a Long Journey

Although much remains to be done, Taiwan has already begun with minor, but significant adjustments to its IP laws. On 17 October 2010, amendments to Patent Law (Article 27 and 28), Trademark Law (Article 4), and Plant Variety Act (Article 17) were passed that would allow recognition of China patent priority rights. Previously the wording of the laws required the applicant supply documents and proof issued from a reciprocating "country". To circumvent the political mutual non-recognition issue, the wording was changed to allow documents and proof issued from "a member of the World Trade Organization".

The next steps, unfortunately, will not be so easily taken. Beyond a general working guideline and schedule, the goals must be reviewed with more specific details in mind—for example, transitional arrangements, cooperation or conflicts with international standards, litigation procedures and many, many more. These topics must be discussed and agreed upon by both sides as well, ensuring that the journey ahead is not just a long one, but also one that is full of complications.


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