Elliot Papageorgiou has been an active contributor to the Chamber’s Intellectual Property Rights Working Group, serving as vice chair in 2012, acting chair in 2013, and finally chair in 2014. He has lived in China since 2004, and, after stints in Beijing and Guangzhou, settled in Shanghai in 2008. During the day, Elliot is a lawyer and executive and partner with the international IP specialist firm, Rouse & Co International LLP.
When and why did you decide to run for chair of the Shanghai Chapter’s IPR Working Group?
The then head of Bayer’s IP department introduced me to the working group soon after my arrival in China. Bayer had always been, and continues to be, an active supporter of the IPR Working Group, and the IP head recognised that the European companies I was advising on China IP matters needed both a first port of call and ‘advocate’ for their China IPR concerns, and that the IPR Working Group would fit that role perfectly. When I moved to Shanghai I realised just how active and effective the Chamber and its working groups were in advocating for the interests of European companies, and how important such a role was for many European companies that face a, shall we say, not-entirely level playing field. From then on I was sold on the working group.
What do you feel are the main differences in China’s IP-climate now compared to when you first came to China?
The ability and methods for protecting and enforcing IP rights in China have grown tremendously over the past 10 or so years. The courts and judiciary have become more specialised and adept regarding IP issues. When I first arrived in China, courts in second- and third-tier cities had little or no IP exposure, patent cases were rare and running a case often involved introducing the judges to concepts they may have read about but had no practical exposure to. Now, China is one of the biggest patent filers worldwide, it has one of the most prolific IP Bars and in the second part of 2014 introduced specialist IP courts in Beijing, Shanghai and Guangzhou/Guangdong. However the most significant change has been the rise of the Chinese ‘IP culture’, with the government seeking to support innovation through encouraging local IP filing, and at the same time Chinese companies increasingly using IP as a ‘weapon’ to secure and maintain their competitive advantage – especially against foreign competitors.
Have there been any occasions when you feel the IPR Working Group has had a real impact on the advancement of IPR protection in China?
The Chamber and the working group now have the opportunity to voice the views of European companies for each and every IP legislative draft and proposed regulatory amendment relevant to IP and have contributed to many positive outcomes.
The working group has been instrumental in securing changes to China’s Patent Law, for example by successfully advocating the implementation of the International Novelty Standard in its third amendment. Likewise, it led the debate on whether the concept of ‘good faith’ should be specified in the new Trademark Law, which it now has been.
It has also been continuously advocating the establishment of specialist IP courts, and three such courts were eventually established in the second half of 2014, first in Beijing, then in Shanghai and by the end of the year in Guangzhou.
From the very beginning of the EU-MOFCOM Intellectual Property Dialogue, the working group has supported the EU Government and the EU Delegation by representing the interests of European industry, drafting IP status reports and amicus briefs for the EU negotiators on behalf of European industry, and by attending the meetings to directly advocate for the interests of European industry.
There has also been positive cooperation with and support for the EU Commission’s IPR and IPR2 projects, and the working group continues to support the IP Key Project, all of which raise the awareness of IP and, through cooperation, share IP experiences and values with Chinese regulatory counterparts.
Perhaps the most important achievement of the working group has been its ongoing role of running interventions and unashamedly advocating the interests of European companies with Chinese authorities and the judiciary, both on a macro level and in specific/individual cases. The working group has in several cases been able to level the playing field, or, at the very least tilt it back a little in favour of European companies in China.
What, in your opinion, are the greatest risks faced by European companies seeking to protect their IPR and innovation in China?
The greatest challenge faced by European Companies in the IP and innovation field is that they risk missing the boat when it comes to acquiring relevant and sufficient IP rights in China. While this risk concerns all IPR, I am most directly concerned with the impending ‘patent storm’, which will be faced by European companies who fail to adapt to the Chinese utility model system by securing prior art evidence, keeping a watch on competitors portfolios, increasing their own filings and invalidating ‘imi-novations’ – i.e. patent and utility model filings with little merit.
What would you like to see done to further improve the IP protection system in China so that it can support China’s innovation drive?
Over the last decade or so, Chinese authorities have clearly achieved remarkable results in raising IP awareness, encouraging levels of filing, enforcement and IP exploitation. In order to make China’s IP protection system even better and more effective in supporting innovation, I would encourage the authorities to continue to raise the levels of IP expertise of the administrative authorities, including the Administration of Industry and Commerce, the Technical Supervision Bureau and the Public Security Bureau, as well as the judiciary. However, perhaps even more importantly, the Chinese authorities should work on ensuring the consistency of IP expertise and protection/enforcement decisions, so that the high standards evidenced in first-tier cities like Shanghai, Beijing and Guangzhou are consistently mirrored in second- and third-tier jurisdictions. This will benefit not only European enterprises, but all companies that have a stake in China’s IP system and in encouraging the growth of innovation in China. This will only be possible with a robust IP system.