Posted: June 21st, 2021
Patent is one of the aspects of Intellectual Property. A patent gives its inventor or the true owner, the right to exclude others from making, using and selling an invention for a specific period of time.
Invention can be electrical, mechanical or chemical in nature, which is product or process, which provides a way of doing something or to make something new. No other person can make, use, distribute or sell the invention without the owner’s or true inventor’s consent. The rights of the patentee are enforced in Courts, to stop the infringement of the patents.
Every country owning patents want to create long-term relations with China and they were finding an investor for licensing their patent in the future to use Chinese Patent System.
In order to get the patent protection in China, the inventor or the true owner of the invention has to file a Chinese Patent Application. The State Intellectual Property Office (SIPO), also known as the Chinese Patent Office of the People’s Republic of China (PRC), founded in 1980, is the government authority which receives and examines the applications for patent.
Intellectual Property protection measures should not end with filing the patent application, it also have to cover legal, technical, administrative and political aspects.
The Patent Law of China was issued in 1984, and it was amended 3 times in 1992, 2000 and 2008 respectively. According to the last statistics/ report given by World Trade Organisation (WTO) on Intellectual Property indicators that are approximately 560,681 patent applications are filed by the people of china in 2012 and ranked first in the world. Over the years, china has received the patent system well and started to use the system actively.
Historical Background of Patent Law in China
After the end of the second world war (WW II) (about 4 years of civil war), communist became superior and gets all the powers. And the People Republic was founded in October, 1949.
The new leaders of China copied everything from the Soviet Union, such as the model of central planning system.
STALINISM THEORY: This theory is copied by the new leaders of China from Soviet Union’s Model. Based on this theory, communism is superior and capitalism is inferior because capitalism is based upon the private ownership which causes injustice, exploitation of labour, civil inequality, imperialism, etc.
Based on this theory only, China implemented its new social, political and economic structure. Whole land of China was captured by the state of China and distributed among the farmers. Private businesses were abolished. All state laws, regulations and public policies were implemented for the safeguards and to honour state interest and public interest rather than personal interest.
In 1996, “Cultural Revolution” stated, in which Chinese people were in high fever of communist “fundamentalism”. This revolution created the disturbances in the social and economic development in the country. The revolution ended in 1976 after the death of Mao. At that time, the whole economy was collapsed and people of china realised that their country was huge technically and economically backward. After the huge discussions and debates, the leaders decided to make the new economic reform and adopt the ‘open-door’ policy in late 1970’s.
The leaders of China had never thought to have a patent system until the end of the “cultural revolution”. Eventually, after that revolution, the First Patent Legislation was initiated by the end of 1970’s.
The First Patent Legislation
The leaders of the whole world are happy with the thinking of the China’s leaders to set up a patent system, to attract the foreign investments in China. The State Commission and the Ministry of Foreign Trade were in full support to establish patent system in China and were working to get a patent law enacted.
In 1978, Hua (the successor of Mao), the Chairman of the Communist Party, decided to give the State Science Commission the mandate for all patent related matters. After a year, in October 1997, the State Science Commission submitted the report to the State Council for establishment of a patent system in China.
On January 14, 1980, the State Council approved the report which resulted in the approval of the:
Preparation of drafting of a patent law
Types of patent: regular invention, small invention (utility models) and designs
Examination of the patent applications for regular inventions
Establishment of the State Patent Office
Establishment of the patent agency to represent foreign incoming filings
The forms of patent were to be decided taking into consideration both the regular patent and the inventors certificate as was difficult in industrial countries and Soviet Union respectively.
After this decision of the State Council, the debate was end on the appropriateness of a patent system in China. But that was not the end of the whole debate. After one year of study in March 1981, the State Science Commission proposed the first draft of Patent Act.
In the report it was highlighted that China was a socialist country because of which European type of patent did not work in this model. Then the report was submitted to take the Yugoslavian-Romanian Model. The inventors would be remunerated, and inventions made by the state-owned firms were to be owned by the state. The firm will just hold the invention.
Then the Patent Act submitted to the Standing Committee of the People’s Congress for approval, where it again met heavy opposition by politicians until 1984 when it was finally passed.
The First Patent Law
The First Patent Law was passed by the Standing Committee of the People’s Congress on March 12, 1984 and it came into force on April 1, 1985.
The Patent Law in China
The First Patent Law which is quite similar to the “European” model can be summarized as follows:
Definition of Patent Rights: Patentees had the right to prevent others from making, using or selling the patented products, or using the patented processes for production or business purposes.
Types of Patents: In China, Industrial Property Rights include 3 types of patents:
a. Regular Invention Patents: novel apparatus or method of achieving a useful task must show “novelty” and, may not be obvious.
b. Utility Model Patent: creations, constructions or fitting of an object in which the technical requirements are not as high as for an invention patent.
c. Design Patent: original designs related to shape, pattern, colour, etc.
(3) Duration of patents: The term or duration varies depending on the type of patent:
Invention patent – 15 years before the amendment but now it is extended till 20 years from the filing date.
Utility Model Patent – 5 years before the amendment but now it is extended till 10 years from the filing date.
Design Patent – 5 years before amendment but now it is extended till 10 years from the filing date.
(4) Un-patentable subject matters: According to article 5 and 25 of the Patent Act of China, Patent Rights shall not be granted for any of the following or following are not the inventions within the meaning of the Patent Act:
Rules of mental activity
Methods of the prevention and treatment of the disease
Foods, Beverages and Dressings
Pharmaceuticals and substances obtained by chemical process
Animal and plant varieties
Substances obtained through nuclear transformation
Inventions that violate the law or social ethics or harm public interest
(5) Publication and Examination:
Regular patent application will publish after 18 months from filing date, and examined upon written request which must be filed within 3 months from the filing date.
Utility model and Design application will be patented automatically upon preliminary examination.
(6) Rejections and Appeals:
Rejection made by the Patent Office can be appealed to the patent Re-examination Board.
Decisions of Board on regular invention application can be appealed to court, but the decisions of the board on utility model and designs are final.
(7) Opposition and Invalidation: Oppositions can be filed within 3 months against the allowed patent after the announcement of the allowance to the Patent Office. And the decisions of the Patent Office can be appealed to the Patent Re-examination Board. An invalidation request can be filed at any time with the Patent Re-examination Board after the issuance of the patent and Board’s decisions can be appealed to court.
(8) Infringing Activities:
The use or sale of a patented product which was produced without the patent owner’s permission
The production and use of the patented invention, where the preparation was not ready before the filing date of the respective patent application.
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