Journal Article

China's amended legal regime on patents for inventions and utility models

Peter Ganea

in Journal of Intellectual Property Law & Practice

Volume 5, issue 9, pages 650-662
Published in print September 2010 | ISSN: 1747-1532
Published online September 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq090
China's amended legal regime on patents for inventions and utility models

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Legal context

On 1 October 2009, the third revision of the Chinese Patent Act entered into force. Unlike the previous two revisions which mainly aimed at harmonizing the Chinese patent regime with international industrial property conventions, the core objective of the present overhaul is the alignment of the law with the domestic interest. The amendments were preceded by a vivid debate. Many commentators expressed concerns that too strong patent protection would invite powerful patent holders to ‘abuse’ their exclusive rights to the detriment of China's technological development. The revision reflects these concerns, in that it, for instance, introduced new limitations to the patent right. On the other hand, the amendments also improved the enforcement of the remaining scope of protection.

Key points

China has joined the coalition of emerging economies which are opposed to a further enhancement of IP protection in international agreements and which emphasize the interest of the public in affordable access to the results of innovative and creative activity. The recent amendments reflect this policy. Furthermore, a number of amended or newly introduced provisions aim at inciting so-called ‘indigenous innovation’, inter alia, by enhancing the protection prerequisites, by intensifying the government control of the outflow of technology, by facilitating invalidation of junk patents, and by improving enforcement.

Practical significance

The greatest challenge to practitioners is the legal uncertainty created by the amendments. Many new provisions are worded in a language which leaves much leeway for interpretation as to their future application by courts and authorities. Practitioners will have to wait for further clarification by case law and by administrative rules or judicial interpretations.

Journal Article.  9982 words. 

Subjects: Arbitration ; Intellectual Property Law

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