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1. Do you understand the SIPO Guidelines and AIPLA comments and letter as presented?

 Yes
 15 (68%) 
 
 No
 (9%) 
 
 Abstain
 (5%) 
 
 1
 (18%) 
 

Total: 22

2. If you don't, please provide detail.

 

​After brief review, I have a general understanding. I do not have a thorough understanding of the Guidelines or the Comments as presented.

 (33%) 
 
 

​I understand the AIPLA comments.  I don't fully understand the SIPO guidelines as they refer to other parts of laws that I am not familiar with.

 (33%) 
 
 

​Preface: before answering, let me repeat what I say below, i.e.:(Anyone considering commenting, or drafting a reply to SIPO, would benefit from considering the report  of the European Chamber of Commerce, entitled" DULLING THE CUTTING EDGE: HOW PATENT-RELATED POLICIES AND PRACTICES HAMPER INNOVATION IN CHINA" freely available at http://www.euccc.com.cn/upload/media/media/27/patentstudy2012%5B766%5D.pdf, which has been considered by at least some members of the Industrial Design Committee, as has the Intellectual Asset Management paper of 22 Feb 2013, available at http://www.iam-magazine.com/blog/Detail.aspx?g=25712644-1578-46a0-9a8a-765632e9ec86)

ANSWER: Not entirely.  I am not sure that the letter is consistent with the comments / 4 column shcart provided.  Moreover, I do not understand why or by who the rightmost column was red-lined already, and if one is to consider the change as made

In the draft letter, on pg 3:" ". . . particularly in view of the use of simple registration systems in almost all other countries that employee [sic] utility model registration systems. . . " understand "employee[sic] is used when "employ" seems to have been intended.

Typo aside, does AIPLA really want to encourage a "race to the bottom / lowest common denominator" with respect to utility models?  True, other countries may have unsophisticated utility model procedures, but other countries are not China, which has the money and workers to do most anything, including examine utility models.

China is in the midst of a STATE PLANNED AND SUBSIDISED PLAN TO GREATLY INCREASE THE NUMEROSITY  OF UTILITY MODEL AND DESIGN PATENTS.  Unless more stringent, substantive examination is implemented, BY 2015 there will be, ACCORDING TO CHINA'S PLANS, millions of what some delicately call "less than high quality" patents (See Recent report of the European Chamber of Commerce, entitled" DULLING THE CUTTING EDGE: HOW PATENT-RELATED POLICIES AND PRACTICES HAMPER INNOVATION IN CHINA" freely available at http://www.euccc.com.cn/upload/media/media/27/patentstudy2012%5B766%5D.pdf

(Anyone considering commenting, or drafting a reply to SIPO, would benefit from considering the aforementioned report, which has been considered by at least some members of the Industrial Design Committee, as has the Intellectual Asset Management paper of 22 Feb 2013, available at http://www.iam-magazine.com/blog/Detail.aspx?g=25712644-1578-46a0-9a8a-765632e9ec86)

See eg page 16, paragraph beginning "prior art submissions in utility model invalidation . . . "

 (33%) 
 

Total: 3

3. Should AIPLA take a position on the proposed SIPO Guidelines at all?

 Yes
 11 (65%) 
 
 No
 (6%) 
 
 Abstain
 (6%) 
 
 1
 (24%) 
 

Total: 17

4. Why should or shouldn't AIPLA take a position on the proposed SIPO Guidelines at all?

 

If the position statement was solicited by SIPO, then AIPLA should take a position after thorough discussion of the issues.  Otherwise, the AIPLA should not take a position.

 (11%) 
 
 

​I think that China shold be commended for attempiting to improve the design protection system, but the AIPLA should not be taking such a strong stand without full consideration of the issues by its membership. There is a divide in coutries with developed intellectual property regimes as to whether examination should occur for design applications, with countries such as Japan and the United States substantively examining applications and jurisdictions like the EU only examining for formalities. Which system is better generally, or for China specifically, is a complicated question.

I think that the comments, regarding a substantive examination system being beneficial due to it coming into harmonization with US practice, need to be removed unless there i time for further consideration.

An additional concern is whether increased substnative examination would lengthen the time for a design to issue. Given that many industries require quick issuance to obtain maximum (or any) benefit of design rights, lengthened examination could significantly hinder these industries in their ability to protect their design from infringers, whose ability to rapidly manufacture knockoff designs could erode the marketplace for the original before there is an opportunity to enforce.

 (11%) 
 
 

​The guidelines relate to two different subject. Industrial designs and utility models.  For industrial designs, I beleive that the guidelines for examiantion are something that chould not be done at this time.  the bulk of the Industrial design world other than the US and a few other countries is based on registration alone without examination.  there is more than enough experience in these countries to be comfortable leaving the design process as registration only.

For utility models,a novelty only examination is apprpriate and in concert with similar laws in other UM countries.

 (11%) 
 
 

​If we don't, we end up with a bad system that we have to accept without at least trying to explain the issues involved.

 (11%) 
 
 

​I think that the aspirational statements in the AIPLA position are fine, but I wonder if the AIPLA comments will be taken as approving the specific language of the SIPO guidelines.   The comments about first to file and searching seem appropriate (and seem in line with what the SIPO amendment say).  The other amendments seem open to many intrepretations, so I am not sure that the AIPLA position should be to explicitly support those amendments.

 (11%) 
 
 

​Any cogent input to a country's new effort should be appreciated

 (11%) 
 
 

​NO, BUT that could change - for now, "No" Because as of now, with all due respect, it seems plain that AIPLA has not adequately consulted its greatest resource - ITS MEMBERSHIP - in formulating a well-developed, and well-reasoned, response to the proposed SIPO guidelines.  It seems evident that, until very recently, only a very small cohort of AIPLA members had been consulted on this, and that the views and opinions of others - not least of which would be the Industrial Design Committee, and very probably other Committees, should be gathered and weighed.  

For now, though, "no" would have to do - because then at least AIPLA would have not tied itself to an ill-considered opinion, and have more latitude to exert influence in the future, should the Chinese system turn out to be [troublesome].  Moreover, though we live in the age of "citizen diplomacy", we must consider the needs and opinions of our State Dept and other agencies, and not hamstring their efforts, now or in the future. (Forgive my saying this if such has already been done; it is just that there has been no indication that it has been done.) 

AIPLA could simply note that it has concerns, and will be watching . .  .also, when we congratulate them on improving, how about mentioning that we, too, are working to improve/harmonize . . . that it is truly a global effort.

 (11%) 
 
 

​US applicants will be major users of the system and could benefit from making their interests known.

 (11%) 
 
 

Working toward global harmonization of design prosecution, which will improve design practice overall, is well within AIPLA's mission.

 (11%) 
 

Total: 9

5. Should AIPLA’s position be limited to utility models?

 Yes
 (12%) 
 
 No
 (53%) 
 
 Abstain
 (12%) 
 
 1
 (18%) 
 
 0
 (6%) 
 

Total: 17

6. Why should or shouldn't AIPLA’s position be limited to utility models?

 

​There are too many issues that should be considered to answer this question.

 (13%) 
 
 

​Designs matter, too.

 (13%) 
 
 

​I generally think that AIPLA should remain silent on the Design aspects of these new rules, but a general statement of support for China improving its design protection schemes would also be acceptable.

 (13%) 
 
 

​As noted above, we should comment that changing to an examination system for designs is unwarrented at this time.

 (13%) 
 
 

Designs are also important IP tools, and design protection in China is importent especially since Cina is a major manufacturing hub. UM's are not a scrtiicalan IP tool, however they are IP and it is appropriate the AIPLA particokpate in the debate.​

 (13%) 
 
 

​Just give a general statement on designs now, because we don't have consensus, but aplaud China for moving to protect IP.

 (13%) 
 
 

​If AIPLA is to effect proper change, it must address BOTH utility models and design patents - they are both problemeatic.  Moreover, in addressing language advocating change, the proposed new language should be of a "shall" character, not of the "may" character it is the change as suggested now, or else the language will effect no change at all. See, e.g. Row 2, et seq.

If you try to move them to "may" you'll be lucky to get may.  If you try to move them to "shall" you might get that - or you'll at least get may, and have preserved your credibility to argue for "shall" language in the future - or for "shall" to be the practice under "may".

Read the above referenced articles, and take the time to consult with AIPLA ID Committee to understand this and all issues better.

And if divergent views abound, perhaps a teleconference could be held between top AIPLA people and at least the head(s) of the committee(s) and any other wise former head(s) etc such as they may see fit to include.

 (13%) 
 
 

​The two are conceptually related and should have similar treatment

 (13%) 
 

Total: 8

7. Do you agree with the Guidelines vis-à-vis designs as drafted?

 Yes
 (29%) 
 
 No
 (29%) 
 
 Abstain
 (18%) 
 
 1
 (24%) 
 

Total: 17

8. Why do you agree or disagree with the Guidelines vis-à-vis designs as drafted?

 

​More information is needed to form an opinon on the Guidelines.

 (11%) 
 
 

​While I believe that it would be beneficial for SIPO to undertake some form of substantive examination for design applications, substantive examination of design applications raises several complex issues in terms of inventive step and obviousness, and I have also heard concerns that substantive examination involving inventive step may involve potential conflicts with international treaties.  I am also seriously concerned about the consistency of inventive step-based rejections and the potential impact on later litigation in China.  I would therefore support only a limited statement that AIPLA favors implementing some form of substantive examination, but that deference to China and further study is required on the extent of such examination.

 (11%) 
 
 

​The exisiting law and rules relative to designs should be maintained.

 (11%) 
 
 

I do not agree with a design examination process for China - adds too much cost. I do not agree wit ha mixed system - adds too much delay if a party wants to enforce (or too much cost if you examine all cases).​

 (11%) 
 
 

​See above.

 (11%) 
 
 

​well put

 (11%) 
 
 

​See above

 (11%) 
 
 

​I favor examination

 (11%) 
 
 

​They should go farther and examine for novelty and obviousness.

 (11%) 
 

Total: 9

9. Generally speaking, should designs be protected after Examination, Registration or a mixed (e.g., AU) system?

 Examination
 (57%) 
 
 Registration
 (21%) 
 
 Mixed
 (21%) 
 

Total: 14

10. Please provide detail / comments on your previous answer - Exam,  Registration or mixed.

 

​The answer to this question depends on the enforcement / challenge provisions in a registration only system, and the resources available for an examination only system.

 (9%) 
 
 

​See above.  I do believe that the Australian model may prove particularly helpful, although I would also support a pre-registration examination system based on novelty.  

 (9%) 
 
 

Examination helps lower the incidence of "junk" registrations.​

 (9%) 
 
 

​Many design rights protect items that have a short commerical life.  Adding examination lengthens the time to protection (sometimes longer than the product life).  Registred designs have limited rights tht are consitent with their staus as non-examined.  There is a place for registered designs.  A mixed system may solve this but again puts enforcement behid getting an examinetion.

 (9%) 
 
 

​I think that the mixed system is confusing.  Different parts of the world give different rights under a mixed system.  It would make sense (to me) for the SIPO to pick registration or exam.

 (9%) 
 
 

See above.​

 (9%) 
 
 

Whether the system is best or not, I think a majority of applicants who understand the difference between exam, reg, or mixed, prefer the options and flexibility of a mixed system.  In particular, from a US perspective, I believe many domestic applicants are more comfortable knowing they have a strong US exam design system, and can spend less money to register in more foreign jurisdictions, and would prefer China to have a mixed design system, like AU.

 (9%) 
 
 

​Makes them more valuable

 (9%) 
 
 

​It is a face-saving compromise.  The Chinese can get the numerosity they desire, but we are not confounded by a million junk patents. They can get their numbers, but not all are equal -  those [legal instruments] will not be strong swords unless they elect to have their blades tempered in the fire of examination.  If they want low-quality patents, let them have them.  But not low-quality patents that are as enforceable as high quality patents which have undergone examination.

 (9%) 
 
 

​I favor examination.  However, the AU system has practical attractions.

 (9%) 
 
 

​Examination prevents overreaching rights.  More than 60% of design apps worldwide are Chinese design apps--there is already a lot there and it might help to winnow down the number of apps (by a more involved exam process).

 (9%) 
 

Total: 11

11. Please propose any specific edits to AIPLA’s draft position letter.

 

​I am not in favor of taking a position.

 (25%) 
 
 

See above.​

 (25%) 
 
 

​Please edit in light of comments above, perhaps synthesized with the comments and ideas of others, perhaps at the leadership conference proposed above.

 (25%) 
 
 

​may want to add "valid" in front of "registered designs" in the last design paragraph.  Note that "employee" in the preceeding paragraph should be "employ" and "Guidelines" is misspelled earlier in the draft letter. 

​Items like allowing shading seem to be outside the scope of the letter--perhaps offer to comment--making simple practices like this consistent worldwide would really be helpful.

 

 (25%) 
 

Total: 4

12. Please propose any specific edits to SIPO Guidelines / AIPLA’s comments thereon.

 

​I am not in favor of proposing edits to the SIPO Guidelines.

 (50%) 
 
 

​Please edit in light of comments above, perhaps synthesized with the comments and ideas of others, perhaps at the leadership conference proposed above.

 (50%) 
 

Total: 2

13. Please provide any further comments you might have

 

​I am concerned that AIPLA is taking a position on complicated issues on examination versus registration for designs, which we have not directly addressed before.

 (33%) 
 
 

​Good job by committee members

 (33%) 
 
 

​Hey AIPLA is to be commended for taking this on - and that there might have been some slippage at this time is understndable, given that all patent practitioners are massively preoccupied with the impending 16 March 2013 AIA implementation . . . .

Gee, do you really think it a coincidence that China wants comments now? LOL  They know we are all on deadline. They know how to play the game.  Not too many years ago, the US was sending one delegation to China to urge improvement on human rights, while simultaneously urging China to increase its penalties for infringement.  China effectively dealt with both by calmly announcing that it was going to make infringement PUNISHABLE BY DEATH.  If I recall, Uncle Sam's reply was in the nature of a stutter . . .  Let's be sure AIPLA is not played off of FICPI, State Dept, or Amnesty International or . . . whoever - you follow?

BTW, if we do write them, has anyone thought about saying a few kind words for the "Hague way" we recently signed on to . . . Just a thought.

Special thanks to the ID Committee, and its very-hard-working leadership, as well as AIPLA,  for soliciting our views on this subject.


 (33%) 
 

Total: 3