Patent Protection in China 中国的专利保护 Introduction of Patent Protection in China

1. Definition of a Patent Patent was/is… an open Letter-"litterae patentes" a contract between government and inventor

2. Why patent necessary? Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced. —— Comments from WIPO Patents Promote the Progress of Science Patentee are obligated to publicly disclose his idea in detail, thus enrich the total body of technical knowledge in the world the purpose of Invention-creation This Law is enacted to protect patent rights for invention-creations, to encourage invention-creation, to foster the spreading and application of inventions-creations, and to promote the development and innovation of science and technology, for meeting the needs of the construction of socialist modernization. —— Article 1, Patent Law of P. R. China

3. What a Chinese patent protects and its duration? Types of patent In this Law, "inventions-creations" mean inventions, utility models and designs. Article 2, PL, 2009 Duration: depends on the types of patent The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing. Article 42. PL, 2009 counting from the date of filing the application: including those applications claiming priority.

4. How foreigners get a Patent in China? For directly filing application in China, appointing a patent agency is prerequisite. Any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency designated by the Patent Administration Department Under the State Council to act as his or its agent. Article 19 of the Chinese Patent Law See Regulations on Patent Commissioning for details Or filing a PCT application and designate China The Patent Cooperation Treaty or PCT is an international agreement for filing patent applications having effect in up to 117 countries.

5. Who receive the filing and grant a patent in China? Normally, A patent is granted by a national patent office or by a regional office. In China, this duty is performed by a national patent office: SIPO (Sino Intellectual Property Office, ) A regional office, such as the European Patent Office and the African Regional Intellectual Property Organization, might play the same role.

6. Laws and Rules governing patents in China Constitution of P.R. China ? Citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavours conducive to the interests of the people made by citizens engaged in education, science, technology, literature, art and other cultural work. Article 47. CHAPTER II. THE FUNDAMENTAL RIGHTS AND DUTIES OF CITIZENS ， Constitution Law of P.R. China

6. Laws and Rules governing patents in China Constitution of U.S. of America The Congress shall have power... [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Art.1, section 8, clause 8 of the U.S.Constitution The words "progress of science," "inventors," and "discoveries" refer to patent law.

6. Laws and Rules governing patents in China Patent Law of the People's Republic of China Adopted on March 12, st amendment in nd amendment in rd amendment in 2008 TABLE OF CONTENTS Chapter I General Provisions Chapter II Requirements for Grant of Patent Right Chapter III Application for Patent Chapter IV Examination and Approval of Application for Patent Chapter V Duration, Cessation and Invalidation of Patent Right Chapter VI Compulsory License for Exploitation of Patent Chapter VII Protection of Patent Right Chapter VIII Supplementary Provisions

6. Laws and Rules governing patents in China Implementing Regulations of the Patent Law of the People's Republic of China 3 rd amendment is processing TABLE OF CONTENTS Chapter I General ProvisionsChapter II Application for Patent Chapter III Examination and Approval of Application for Patent Chapter IV Reexamination of Patent Application and Invalidation of Patent Right Chapter V Compulsory License for Exploitation of Patent Chapter VI Reward and Remuneration of Inventors or Creators of Service Inventions-Creations Chapter VII Protection of Patent Right Chapter VIII Patent Registration and Patent Gazette Chapter IX Fees Chapter X Special Provisions Concerning International Application Chapter X Supplementary Provisions

6. Laws and Rules governing patents in China Regulations of SIPO (Sino Intellectual Property Office) Guidelines For Examination(2006) Provisions Concerning the Implementation of the Patent Cooperation Treaty in China Notice Concerning Handling of Deposited Micro- Organisms by the Chinese Patent Office ……

6. Laws and Rules governing patents in China Other laws and rules, such as: PRC Criminal Law, enforced on 1997, applicable to IP related criminal activities PRC Contract Law, enforced on October 1, 1999, applicable to all contracts, including licensing contracts. the Regulations for Customs Protection of Intellectual Property Rights, applicable to Customs Protection Relevant Interpretations by the Supreme People's Court ……

7. Creation of Patent in China Double digit growth rates for all types of patents and trademarks Designs and utility models increase exponential, re trademarks growth rate world leader since app. five years –Pronounced fear of “junk patents” – Schneider case Invention patents show the country’s capacity to exploit knowledge and translate it into potential economic gains. In this context, indicators based on patent statistics are widely used to assess the inventive performance of countries

Patent applications (accumulated)

Patent grants (accumulated)

Invention patent applications (per year)

Invention patent granted (per year)

Foreign patents applied (accumulated)

Foreign patents granted (accumulated)

Utility models Almost not used at all by foreign applicants Technical areas of filing different from invention patents High number of most likely invalid rights – “junk patents”

Utility models applications (per year)

Utility models granted (per year)

Designs Even stronger growth than utility models Weak use by foreign applicants Market entry barrier? High number of most likely invalid rights – “junk patents”?

Design applications (per year)

Designs granted (per year)

8. National IP Strategy

Key objectives Repeated objective: “Creation, utilization, protection and administration of IP to improve” Will act as binding work plan for all IP-related agencies –Implementation is supervised by SIPO, also at local level Two timelines: –2020: Creation, utilization, protection and administration has fully improved (6) –By within five years – a series of highly specific working targets, so-called “goals” (7)

Goals 1.More self-owned rights, including overseas (7) –Patents: Advanced country in terms of annual number of patents, including strong increase of applications overseas –Trademarks: A number of world brands emerged –Copyright: Value of core copyright will increase –China owns a number of PVPs and Topographic Designs –Trade secrets, Geographical Indications, Genetic Resources, Traditional Knowledge, Folklore will be “effectively protected” 2.Economic value of IP increased for utilization –Creation of National IP Champions emerge with famous brands, core IP and rich experience in utilizing the IP system 3.Piracy and counterfeiting significantly reduced 4.IP Culture

Different tasks, according to type of IPR Patents: Focus on obtaining rights, quality patents, access to technology in standards – no specific task on protection of patents! Trademarks: Focus on protection and anti-counterfeiting work, ownership of independent rights, quick registration procedures, quality of procedure and quality rights, including well-known trademarks Copyright: Focus strongly on growing a copyright-reliant industry and commercialization of copyright, fight against piracy only against “large-scale” infringements

Impact on cooperation Engagement by Chinese agencies on issues outside or contrary to the NIPS goals and tasks will be highly unlikely Strongly limited possibility to cooperate on issues more stressed by foreign partners (e.g. stronger enforcement of patents) New political line: Judiciary is to be kept more distanced from Western influences, yet is foreseen to play a key role for strengthening enforcement according to NIPS