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资讯社区>文章

包恒律师:扎根中国的拓荒者(英语)

来源: NOW999 2014-06-17 11:45

包恒律师:扎根中国的拓荒者
(本文图转自中外知商网-中国首家知识产权资讯综合门户)

Mr. Buxbaum’s first trip to China was 38 years ago. He was the first American lawyer invited to China to represent foreign parties in 1972, three weeks after President Nixon’s historic visit. He had handled lots of international intellectual property litigations in China, the most impressed one was the software copyright lawsuit between Microsoft and Juren in 1993.

During his half a century’s sojourn in Asia, Mr. Buxbaum has become an experienced and highly respected practitioner in law field and also a Sinologue who is fluent in both oral and written Chinese. On March 27th, Mr. Buxbaum accepted GIPB magazine’s special interview and talk about IP issues of China.

With abundant experience and research in China’s law field, Mr. Buxbaum has a very clear understanding of China’s IP law and legal institution. From the perspective of a foreign attorney to see the status of China’s IPR protection, his words are frank and straight-forward. In his opinion, Chinese government has been making efforts to enhance the legal provisions and now China’s IP law is good and basically meets the requirements of international standards, but the enforcement of the law has lots of problems. There is a long road for China’s legal system and image-management of Chinese courts to be improved.

He suggested that China should build specialized intellectual property courts and enact a special law of evidence so as to enhance IP protection. In his opinion, appointing well-qualified judges and improving the salary of judges will also be helpful to the enforcement of IP law.

By giving speech or making publications in magazines, Mr. Buxbaum acts as an professional consultant in international IP affairs who is the director of IP committee of South American chamber of commerce and gives advices to enterprises’ IP strategy. He also gave lots of suggestions to Chinese enterprises which plan to make investment in abroad, for example, Chinese companies should make a particular budget for IPR protection each year, especially for the large corporations, they should hire good attorneys or agencies to act for IP affairs. etc.

包恒律师:扎根中国的拓荒者

GIPB: Mr. Buxbaum, you witnessed how we established diplomatic relations and also the process of economic exchanges between China and USA. Lots of American enterprises have gained huge benefits by investing in China, and some ended in failure. What’s your advice for overseas companies which plan to make investment in China?

Buxbaum: It’s a complex question, because different company is in different circumstance. No matter where to make investment in, first of all, you should have a good understanding of the area’s current status, such as economic conditions, legal system, and market situation.

GIPB: Viewing from your decades’ experience in China, what do you think of China’s current status of IPR protection?[page]

Buxbaum: In my opinion, China has made great progress in the legislation of intellectual property and China’s IP law has basically kept pace with international standard, so I think China’s IP law is good. But there are lots of problems in the enforcement of law. Firstly, I think the number of cases that administrative bodies such as Intellectual Property Office and Industrial & Commercial Bureau can handle is limited in China. China’s statutory damage and punishment in IP infringement cases are not strong enough to warn the infringers. For example, a factory will undertake the punishment and continue to produce infringement products because the penalty is too low. Sometimes, an attorney needs to follow up by visiting the court or factory for two or three times in a single case. So I suggest that the power of China’s administrative bodies should be enhanced. Secondly, China lack of a comprehensive law of evidence. Even though the court has lots of regulations concerning evidences, but it’s not enough when you’re dealing with cases involving foreign interests. Thirdly, personal relationship will interfere juridical judgments in China. What’s more, many Chinese judges accept bribes because judges’ salary is not in high status. Those negative situation show that there is a long road for the improvement of China’s legal system and image-management of Chinese courts which makes the IPR protection not so strong in China.

GIPB: How much influence does China’s current status of IPR protection have on foreign investors’ decision-making when they decide whether to make investment in China?

Buxbaum: It’s hard for me to evaluate the influence, but there must be a lot of overseas companies which are not willing to provide their latest technology to China because they are afraid that Chinese people would steal it only after one or two days. It’s a very practical question.

GIPB: Someone said that, in fact, to strengthen IPR protection was equivalent to force developing countries pay taxes to developed countries and increased the financial burden of developing countries, which seemed to be a disguised form of exploitation to developing countries. What’s your comment on this opinion?

Buxbaum: This opinion seems to be one-sided and I don’t agree with it. China is the world’s second largest economy which develops so fast within a short period and the development is very sound. Obviously China is not a poor country now, it must rely on higher technology and more inventions to push economic development thus it has to protect intellectual property rights. At the same time, China itself will accumulate more intellectual property rights in its development. For example, Taiwan was called the center of the world’s IP infringements many years ago, but Taiwan is quite good at protecting its IPR with comprehensive penal law now, and the judges or experts are all willing to undertake responsibilities. China mainland can also make improvement like this.

GIPB: Guangzhou government is preparing to establish IP court, what do you think of it?

Buxbaum: I think it’s entirely necessary because 95% of the intellectual property disputes in China comes from two Chinese enterprises while international case is only in a small proportion like 3%. Chinese government encourages people to develop independent high and new technology, it’s no doubt that IP rights should be protected. Beijing has two IP courts which have a good reputation. If every region has its own IP court with well-educated judge which has distinguished social-status, I think it will be beneficial for enforcement of IP law.

GIPB: With more and more Chinese enterprises to go abroad and make investment all over the world, regarding to their IPR protection, what’s your advices to these Chinese enterprises during the process of their overseas investment?

Buxbaum: First, they need to employ good attorneys to help them with IP matters, no matter patent, copyright or trademark, application and registration should be on time. For example, in USA, many firms will employ an expert for the needs of IP protection, the attorney can be local or from abroad, it’s very common in USA or Europe.

GIPB: China’s trademark application and patent application volume top in the world, but we are very weak in the IP commercialization, such as IP licensing, transaction, IP financing. What’s the reason for this situation?

Buxbaum: I don’t consider the situation strange, because so many people in China don’t realize that how important intellectual property is. They don’t have the consciousness that intellectual property is the most valuable asset of a company, if you illegally use other company’s technology, it’s equivalent to steal others’ assets. Chinese government have done lots of work to educate the public the importance of intellectual property, while many people still don’t understand, but this kind of education is necessary. They must understand that intellectual property is asset, just like your house.

GIPB: What’s the successful experience that China could learn from foreign countries about the IP commercialization?[page]

Buxbaum: I think Chinese government’s all policies about encouraging people to make research and inventions are quite good, such as incubators in universities or in companies. In this respect, you don’t need to learn from abroad, you have done a good job. I think Chinese people could learn the spirit of innovation from American people, because American people like to make inventions which is a kind of habit and has no business with the government.

GIPB: In what ways does Anderson & Anderson LLP help to protect enterprises’ IPR?

Buxbaum: Our methods are same with others, there is no difference. IPR protection covers many aspects, first, we help enterprises to register their IP and also encourage them to make application as early as possible. Second, commission a survey firm to make investigation if any infringements exist. Third, decide to deal with infringements with litigations or in administrative way or any other ways.

GIPB: Regarding to legal business requirements of Chinese enterprises which have suffered from IPR infringements in abroad, do you have any service for them?

Buxbaum: We certainly have legal service for Chinese enterprises in abroad, such in Mongolia and in others countries of Asia. But most of our clients are foreign enterprises which make investment in China.

【记者手记】

在广州的黄埔大道富利盈隆大厦,一位八十岁的老人几乎每天都驾车来到这里“据守”着一个办事处,履行他在美国安与恩事务所的中国法律事务主任职责,履行他在华南美国商会知识产权委员会的主任职责,还有,“履行”他已离不开这里的四十年中国情。

这位老人叫包恒。

包恒是他的中国名,是他于上个世纪五十年代进入哈佛大学攻读中国法律史时起的。他曾很“拉风”,1963年在新加坡教学时批评过在位的总统李光耀是独裁者,1964年在台湾和蒋介石喝过中国茶,1972年在尼克松访华三周后他因被怀疑是间谍而在广州东方宾馆软禁,1978年他在肯尼迪中心与访美的邓小平“简单握手”并听到邓“充满智慧”的演讲,1997年在江泽民访美时与克林顿建立“法治计划”后他即以“法治论坛”响应之,他和亚洲的众多法律专家以及中国高官来往互动。不是传说,是人们都说,这人是“中国通”。

预约采访的时间到了。他是一个人走进会客室的,轻轻地,如同一个安静的孩子,来到了我们面前和我们握手。我以为,像他这样年纪大大的老人,像他这样阅历厚厚的名人,像他这样故事多多的奇人,他会由刚才核对我们身份的那些年轻助手们簇拥着进来,没有。他的装束很传统,就像我幼时看西片里出镜的老派男人,透气礼帽,纹布西服,蓄山姆胡,彬彬有礼,传统的,老法律人。

上世纪六十年代初,亨利·基辛格曾为哈佛大学中国法律史的学生授过课,包恒即在其中。正是这位教授,后来成为尼克松政府进入紫禁城的推门人,并帮助包恒于1972年开拓了中国的法律事务。自此,成立于1885年的美国安与恩律师事务踏上了中国大陆。

我的同事按照事先准备的提纲有条不紊地问,包恒博士也有条不紊地答。这是必须的,因为五月刊要上几位有份量的人物,包恒是重要一员。但我还是忍不住就“那个问题”希望他当面向我们直白。就在我的同事对我说“问完了”时,我即对包恒博士说,您来华N久、贡献颇大、人事厚积、年事已高,所以您对许多事情要嘛已看透要嘛不介意了是吗。包恒博士答,是的。我抢着说出来:那您是不是人们传说的间谍呢。包恒博士抢着回答:不是!

这个采访在哈哈大笑的气氛中结束。(钮海津)

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