As the Asian region reopens after three years of the COVID-19 pandemic, the role of intellectual property remains more important than ever. This is reflected in the approaches of the best law firms for IP work, which have gone above and beyond when it comes to servicing their clients in these times of transition. 

 

The effective protection of intellectual property rights (IPR) remains a key pillar of economic growth and is often seen as the Achilles heel of economies across Asia. Over the last few years, however, protection has improved significantly across Asia.

From fine-tuning in Japan, which has a well-developed system of IP protection, to China’s efforts to strengthen rules and enforcement and India’s ongoing rapid growth, all the way to the discrepancies across the 10 members of the Association of Southeast Asian Nations (ASEAN), IP laws and regulations remain of paramount importance for business and economic growth.

With the largest population in the world and plenty of upside market potential, Asian countries continue to generate new and innovative domestic businesses while remaining attractive for global businesses across all sectors. Many, if not most, of these businesses produce and rely on intellectual property (IP).

IP is often the most valuable asset businesses have. A constant challenge for regulators is how to ensure IP is protected while creating an environment that facilitates and encourages innovation, is in line with global standards and remains attractive enough to attract new businesses.

In recent years, economies across Asia have seen significant developments in copyright, trademark and patent protection. Governments and organisations throughout the region continue to work to strengthen IP-related laws and regulations and improve enforcement.

A significant step forward in 2020, for example, was the signing by 15 countries of the Regional Comprehensive Economic Partnership (RCEP). This advanced and forward-looking free trade agreement is the first among the largest Asian economies and covers about a third of the world’s population.

However, across Asia, different countries have seen various levels of development in their IP protection infrastructure, with recent developments pointing to some of the still-existing disparities.

JAPAN: FINE-TUNING

In the first half of 2023, Japan was expected to approve guidelines for new legislation, first proposed in December 2021, to pay companies to keep secret any patents with potential military applications, including compensation equivalent to about 20 years of licensing income.

The new patent protection was expected to take the force of law by May 2024 and mark a significant change for sensitive patents, usually made public a year and a half after publication.

The new law would further strengthen Japan’s IP protection system, which was developed earlier than most in the region and is regarded as more mature and robust in its ability to protect intellectual property rights (IPR) related to patents (utility models and designs), trademarks, copyrights, and trade secrets. Separate legislation protects each one.

The Japanese government has established various laws and regulations to protect IP, and it has also signed international agreements and treaties to ensure that IP rights are recognised and protected globally.

Patents are protected in Japan by the Patent Act, which provides for both utility and design patents. The Japan Patent Office (JPO) administers patents, and the country is a member of the Patent Cooperation Treaty (PCT). A Trade-mark Act and participation in the Madrid Protocol support trademark protection, and a Copyright Act does the same for copyrights, while the Unfair Competition Prevention Act protects trade secrets. Japan also has specialised courts for IP disputes, including the Intellectual Property High Court and the Tokyo District Court Intellectual Property Division.

Still, Japan has ramped up efforts to strengthen IP legislation in recent years and better protect IPR. For example, in 2021, Japan strengthened Article 102 of the Japanese Patent Act, which deals with the presumption of damages, and the changes allow patentees to prove serious damages more easily.

Since then, the success rate of patent owners that head to court has increased rapidly in the past few years, and financial compensation has also increased over the same time.

CHINA: FORWARD MOVEMENT

China has, over the last few years, made significant progress in strengthening its IP protection system. However, there are still myriad challenges in effectively enforcing IP rights, particularly in the areas of patent and trademark infringement, copyright piracy and thefts of trade secrets.

To address these challenges, China has established specialised IP courts to handle IP disputes, including the Beijing Intellectual Property Court, Shanghai Intellectual Property Court, and the Guangzhou Intellectual Property Court, which was founded in 2014. These courts have been working to improve IP enforcement in China.

In April 2023, the Intellectual Property Court of the Supreme People’s Court (SPC-IPC) released its report for 2022, which suggested that courts had dealt with 6,183 cases throughout the year, up 18 percent from a year earlier. This included 4,405 new cases.

The increase in cases represented a slowdown in the growth of cases, and this was mostly related to a fall in patent grant and invalidation disputes, as the IPC stopped hearing appeals on technology-related IP contracts on May 1, 2022, according to the report.

Overall, China’s patent protection system has improved significantly over the past couple of decades.

A Patent Law provides for both invention and utility model patents, and the State Intellectual Property Office (SIPO) is responsible for administering the system, including the examination and granting of patents. A Trademark Law in China allows trademark and service trademark registration, which are administered by the Trademark Office of the State Administration for Industry and Commerce (SAIC). A Copyright Law protects literary, artistic, and musical works, as well as software and databases. The National Copyright Administration is responsible for administering China’s copyright system, and the Anti-Unfair Competition Law protects trade secrets.

A revised Patent Law took effect on June 1, 2021. The top-down reforming of the IP system incorporates both judicial and legislative updates.

The revision of the Patent Law strengthened the protection of the rights and interests of the patentee, promoted the implementation and application of patents, and improved the patent licensing system.

For example, the law raised the potential damages for malicious infringement, raising the lower limit of statutory damages from RMB10,000 to RMB30,000 and the upper limit from RMB1 million to RMB5 million, significantly increasing penalties for offenders. In the first decade of the century, by contrast, IP rights could only have expected to receive no more than $20,000 (about RMB150,000 at the time) in damages in infringement lawsuits.

The new law also establishes a drug patent linkage system with parallel judicial and administrative procedures, enabling patent owners of innovative drugs to stop infringing generic drugs from entering the market as soon as a drug is approved.

It also extends the term of protection for design patents to 15 years, and includes partial design patents in the scope of protection, and provides domes-tic priority for design patents.

More forward-looking, the amendment also considers job inventions, rewards and remuneration, an open licensing system and patent rights abuses.

China has also strengthened the administrative protection of IPR.

Data from the State Intellectual Property Office showed that China handled 58,000 administrative cases of patent infringement disputes in 2022, up 16.8 percent year-on-year; received 71,000 applications for rights protection assistance; and accepted 88,000 mediation cases.

China is also deeply involved in international rulemaking on big data, artificial intelligence, gene technology, and genetic resources under the framework of the World Intellectual Property Organisation (WIPO) and acceded to the Hague Agreement and entered into force on May 5, 2022.

INDIA: RED TAPE

India has made significant progress in developing its intellectual property (IP) protection system in recent years. The Indian government has taken various initiatives to strengthen IP protection and enforcement.

A report for 2021-2022 by the Intellectual Property Office released in April 2023 suggests ongoing growth in IP filings, with patent applications rising 13.57 percent through the year, design applications up almost 60 percent, trademarks rising by 2.1 percent and copyright filings up by 26.74 percent. Altogether, 66,440 new patents were filed in the 2021-2022 year.

The country has a Patents Act that covers both product and process patents, a Trade Marks Act, a Copyright Act and the Indian Contract Act that protects trade secrets. It also has in its books the Protection of Plant Varie-ties and Farmers’ Rights Act provides for the protection of plant varieties in India. India has established specialised IP courts to handle IP disputes, including the Intellectual Property Appellate Board and the Commercial Courts and Commercial Division.

Aware that a big challenge for the country’s IPR protection system is a massive amount of red tape, the government has taken steps to streamline the patent examination process, including the introduction of a fast-track patent examination system for certain categories of patents and the implementation of a comprehensive e-filing system for patent applications.

India has signed several international agreements and treaties to enhance cooperation with other countries on IP protection and enforcement, including the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty in 2018.

Overall, India’s efforts to strengthen its IP protection and enforcement system have helped to create a more conducive environment for innovation and creativity.

ASEAN: BETTER PROTECTION

The ASEAN countries include Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. Participation in the Association of Southeast Asian Nations and the close trade relationship have facilitated some unified IPR standards for the 10 countries, but there are also some significant differences in the levels of IPR protection in each.

Still, ASEAN countries are trying to accommodate international norms with regional and national rules, and some have taken significant steps to improve protection.

In January 2023, for instance, significant changes to Vietnam’s Intellectual Property Law took effect. The changes were first introduced in January 2022 and ratified in June 2022. The changes brought the law closer to international standards and marked the most comprehensive amendments since the law was first introduced in 2005.

The changes clarify the rules around co-authorship, moral rights, property rights, and copyright in movies, theatre, and computer programs, protecting them as literary works.

ASEAN countries have taken significant steps to improve IP protection as a group.

The regional group does have a specific initiative called the ASEAN Intellectual Property Rights Action Plan 2016-2025, which sees IP as central to building the region’s socioeconomic goals. The ASEAN IPR Action Plan and other initiatives aim to address these challenges and promote the development of a robust IP protection system throughout the region.

The plan aims to strengthen IP protection and enforcement across all ASEAN member countries.

The ASEAN IPR Action Plan includes several initiatives to improve IP protection and enforcement in the region, including establishing regional IP agreements, capacity-building programs for ASEAN member countries, and cooperation with international organisations. It tries to get all member countries in ASEAN to accede to all the major IP treaties such as the PCT, TRIPS, Paris Convention, Madrid Protocol, and the Hague System.

All of ASEAN’s member countries, except Myanmar, are PCT, Paris Convention, and Madrid Protocol members. The PCT enables countries to benefit applicants that seek international patent protection by providing a unified procedure for patent applications across its contracting states.

Most ASEAN countries, again with the exception of Myanmar, joined the ASEAN Patent Examination Cooperation (ASPEC) deal, launched in 2009. As a regional patent work-sharing program among all the ASEAN member countries except Myanmar, ASPEC shares search and examination results between participating member countries’ IP offices.

This program could save substantial time and cost for those who seek patent protection in multiple ASEAN countries.

The ASEAN Common Guidelines for the Substantive Examination of Trade-marks were developed to provide a common approach to examining trademark applications across ASEAN member countries. The guidelines aim to improve the region’s efficiency and consistency of trademark examination.

The ASEAN Copyright Framework was established to promote the development of copyright industries in ASEAN member countries and to strengthen copyright protection and enforcement. The framework includes initiatives to improve copyright laws, promote the use of technology to protect copyright, and provide capacity-building programs for copyright enforcement agencies.

ASEAN countries also seek cooperation with countries with developed IPR systems. On September 16, 2022, the Japan Patent Office (JPO) announced its IPR Action Plan for 2022 with the Association of Southeast Asian Nations (ASEAN). The plan is an annual measure based on the ASEAN IP Action Plan 2016-2025, which is dedicated to improving the IP environment in the ASEAN region. The plan provides training to the ASEAN Intellectual Property Academy.

It holds the 3rd Japan-ASEAN Patent Experts Meeting to discuss the improvement of patent examination standards in advanced technologies, sharing issues regarding patent mistranslation, etc. It continues the survey on patent examination and the activation of patent information in advanced technologies by East Asia and the ASEAN Economic Research Center (ERIA).

The plan also promotes the joining and operational cooperation of the inter-national filing system (Madrid Agreement/Hague Agreement).

Each ASEAN member country also has laws and regulations governing IP protection, including patents, trademarks, copyrights, and trade secrets. Many ASEAN member countries have also signed international agreements and treaties, such as the World Intellectual Property Organisation (WIPO) treaties, to ensure their IP protection systems are recognised and protected globally.

Take Malaysia as an example. The Intellectual Property Corporation of Malaysia (MyIPO), the patent office responsible for the provision of IP registration services and administration of IP registries, currently has patent prosecution highway (PPH) agreements with four foreign patent offices – the Japan Patent Office (JPO) since 2014, the European Patent Office (EPO) since 2017, the China National Intellectual Property Administration (CNIPA) since 2018 and, most recently, with the Korean Intellectual Property Office (KIPO) since 2020.

Under the PPH, a patent applicant may request accelerated examination by the MyIPO based on favourable examination results of a corresponding application in Japan, Europe, China, Korea, or a PCT application.

 

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