China IP: You have been engaged in this career ever since China’s patent system was set up. Could you give us a brief introduction to the development of patent agency system?

Ma Lianyuan: The patent agency system is a very significant system. Patent application is a complex legal process. Inventors, whether individual or collective, do not have the time, energy or expertise to apply for patents on their own. Therefore, professionals are needed to apply for patents on their behalf, and these specialized personnel are patent agents. I think the emergence of patent agents is a kind of social division of labor. Patent agents are the same as lawyers by nature, except that they are specialized in intellectual property law.

China’s patent agent team was established at the same time as the patent system. At that time, China’s first batch of patent agents was cultivated by organizing training courses. Patent agents were also civil servants and mostly worked in institutions of local science and technology commissions at that time. In 1988, private ownership started to appear in the state-owned patent agencies. In 1994, partnership agencies came out and gradually were approved by the government, but the number was still marginal. Patent agencies were entirely separated from government organs in 2001 and thus the patent agency industry officially entered the market.

China IP: According to the Development Plan of Patent Agency Industry, currently there are about 6,000 patent agents in practice. What’s the difference between the number of practicing agents and that of qualified agents?

Ma Lianyuan: China currently has more than 10,000 qualified patent agents, of which only 6,000 are engaged in real business. There is a margin of 4,000. The 4,000 people, who have received patent agent certificates but aren’t engaged in real practice, are probably composed of three parts. The first group is those who have certificates but don’t choose patent agency or the intellectual property industry as a career. The second group refers to some of the elder agents, who have now retired or do not participate in specific application work. The third is senior agents, who have been engaged in management rather than specific tasks like editing or translating on the front line. However, according to my estimation, the number of real practicing patent agents should be around 4,500 and no more than 5,000.

China IP: Is the number 6,000 too small in reality?

Ma Lianyuan: 6,000 agents are far from enough. Last year, there were 820,000 patent applications in our country, 200,000 of which were invention patents. The amount was very large. 70% of the applications were handled by patent agents. Therefore, each agent had an average workload of 137 per year, which was hard for the registered patent agents to handle.

China IP: In common practice, however, no patent applicant has difficulty in finding a patent agent. Sometimes, one patent application may be chased by a number of agents.
 
Ma Lianyuan: It is true and there are a few reasons for this. Firstly, many people without agent certification are now engaged in patent agency, for example in Beijing. These people are so-called patent assistants or patent engineers. The size of this group is two or three times larger than the number of practitioners and they bear a lot of the workload. Secondly, 300,000 out of the 800,000 patent applications are designs. Design patent applications require pictures instead of writings. If the pictures provided by the applicant are complete, it is possible to finish several applications each day. The third is that some agencies are irresponsible, particularly in drilling through the loopholes of government. They can even deal with dozens of applications a day. Sometimes, in order to fool or cater to their customers, they rush through the application procedures without considering the quality. As far as I know, some small agencies can even finish 10,000 applications in a year. Therefore, if the 820,000 applications had no “bubbles” inside and each of the agents had done their job seriously, 6,000 agents would certainly not have been enough.

China IP: What do you think has led to the limited number of patent agents?
 
Ma Lianyuan: Mainly because the qualification examination for patent agents has a relatively short history. China launched the Patent Agents Qualification Examination in 1992 and held one test every two years. After the reform in 2005, the examination has been held once a year since 2006. So far, only 11 examinations have been carried out. Therefore, it’s normal that the patent agent team is not so large.

Moreover, the pass rate of current examination is relatively low. Only a few hundred people can pass the test everytime and the proportion is less than 15%. Though the number of potential applicants signing up for the exam number is ideal, the pass rate is far from satisfying.

China IP: Does anyone ever call for enhancement of the pass rate?

Ma Lianyuan: This is a theoretical dispute. In fact, I have been calling for a raise in the pass rate, mainly in the hopes that the industry may become more competitive so as to enhance the overall quality. It is as if a society should maintain a certain unemployment rate. For example, if 8,000 patent agents are chasing for 5000 jobs, the quality of patent agents will be improved a lot. From the perspective of market economy, as long as the threshold exists, it would not be troublesome to have more people pass the exam. However, the opposing view holds that if the exam is not strict enough, it’s impossible to guarantee the quality of patent agents. In fact, from a practical point of view, having a patent certification does not guarantee quality. Some of the licensed agents, especially recent graduates or those expected to graduate, cannot be relied upon to provide quality work in the early stages. They still need practice and experience. So I hope a larger number of people can pass the exam to improve the overall quality through market competition.

China IP: Can we assume that a certified agent can find a job more easily?
 
Ma Lianyuan: Now the circumstances have changed. One reason is that the number of agents has become larger and larger; another is that many agencies pay more attention to the actual work quality. Certification is not necessarily a requirement. There are a lot of patent engineers, who do not have certificates but have strong working ability. Generally speaking, they will be more popular.

China IP: Currently, a large number of patent agents are gathering in Beijing, while other cities are sighing because the number of patent agents is limited. Do you think this imbalance is normal?

Ma Lianyuan: This imbalance certainly exists. Sometimes, when some cities have finally cultivated some local agents, the agents would soon move to Beijing, Shanghai or Guangdong for work. Still, I think this is quite normal because the number of patent agents is closely related to the economic level of this area. Foreign agencies also have similar problems. There are more opportunities in Beijing and developed coastal areas, which means they are more attractive to young agents, since they can get employed and have more chances to learn and promote themselves. So, only from a market perspective, it is normal for the talent focus and flow.

China IP: There is a view that China does not lack patent agents, but does lack highly qualified patent agents. Do you agree?

Ma Lianyuan: Yes, I can’t agree more and I think the key issue is to raise the level, which has two meanings here: The first is the operational level, that is, whether or not the writing skill is good, the translation is accurate, even the ability to communicate with customers is strong; Secondly I think patent agents should enhance another standard, i.e. business ethics. At present, bad faith happens in China’s agency industry from time to time. This is also a major concern in the Development Plan of Patent Agency Industry. It will be one goal to solve this issue by establishing a credit information management platform for patent agents.

China IP: What do you think is the most effective measure to improve the competency of patent agents?

Ma Lianyuan: I think that the most fundamental way is to expand the team of patent agents. Quantity is the very basis of quality. The annual Patent Agent Qualification Examination has now eased the lack of patent agents to a certain degree. I believe if we can further expand the team, the quality of patent agent will naturally go up with the market competition.

(Translated by Li Yu)