IP Protection

Since China “opened its door” in 1979, the Chinese government has realized the importance of protecting IP rights by actively participating in international cooperation programs for IP protection.  For instance, China joined the World Intellectual Property Organization (WIPO) in 1980, and became a member of the Paris Convention for the Protection of Industrial Property Rights in 1985.  Since 1994, China is a member of Patent Cooperation Treaty (PCT), and since 2001, China has ratified the agreement on Trade Related of Intellectual Property Rights (TRIPS).
In 1984, China enacted its first patent law granting patents for inventions, utility models and designs in order to promote modern science and technology development.  However, the 1984 Patent Law provides little protection to pharmaceutical and chemical inventions.  In 1992, China amended the 1984 Patent Law in compliance with an agreement between China and the United States, i.e., the Memorandum of Understanding (MOU), as well as with an effort to join the WTO.  The 1992 Amended Patent Law extends the duration of patent protection and includes the protection of pharmaceutical and/or chemical inventions, and microbiological products and processes.  The 1992 Amended Patent Law promotes and encourages investment in biotechnology research and development, and increases the importation of chemical/pharmaceutical products .

In 2000, the Chinese Patent Law was amended again to include the Implementation Rules for Patent Law, which took effective on July 1, 2001.  The amendments provide patent owners new substantive rights, such as rights of “offer for sale”.  The 2001 Amendments of the Patent Law also simplify patent application procedures and improve administrative and judicial enforcement procedures .

This article provides an overview of the Chinese patent law incorporating its Amendments.  The article also compares the Chinese patent prosecutions and litigations with the U.S. patent practice.  Moreover, this article discusses some social and cultural problems for enforcing and implementing patent or other IP protection in China, and arduous improvements and efforts that the Chinese government has taken to strengthen the patent and other IP protections in China.  The article concludes that China has achieved a noticeable great improvement in patent and IP protections particularly over the past few years.  However, practically speaking and with a population of 1.3 million, China still has a substantial long way to go to match and/or resemble the patent and/or IP enforcement mechanisms of the U.S. or other advanced western countries.

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