China Patent Reform. When China is Good.....
Regular readers know that CLB generally does not like to write much about upcoming laws. There are three reasons for this. One, there are plenty of existing laws about which to write and those, for obvious reasons, tend to be more central. Two, upcoming China laws often never come. Three, it is difficult to write about a law without having seen it in action first.
On top of that, I generally avoid writing about patent laws because I am not a patent lawyer.
But I am going to violate all of the above by pointing out an excellent Wall Street Journal opinion piece, entitled, "Patent Reform With Chinese Characteristics: Beijing's amended intellectual property law holds dangers." The piece is written by Ronald A. Cass, dean emeritus of Boston University School of Law, president of Cass & Associates, and former vice-chairman of the U.S. International Trade Commission. The reason I so much like this article is because it so clearly explains much of the current patent situation in China and the likely implications of the Third Amendment to China's patent law, which was approved in late December and is scheduled to go into effect in October.
If you are interested in learning more about China's IP policies, this article is a must read.
Comments (2)
Read through and enter the discussion by using the form at the endPete - February 17, 2009 12:00 AM
I read that WSJ article last week and I am very surprised to find China Law Blog giving it such a strong recommendation. I find that it is infected with the usual WSJ anti-China paranoia. This is particularly evident in the introduction, where the author somehow manages to blame China for the fact that the Europeans took so long to learn how to produce writing paper and silk. What was China supposed to do – arrange for voluntary medieval tech transfer?
On the detail of the law, the author seems to echo a lot of American submissions on the drafts in being absolutely obsessed with the compulsory licensing proposals. Compulsory licensing is allowed in TRIPs and any developing country is going to take advantage of that, which is all that China did. China has actually had CL provisions since the first patent law and hasn’t used them. Not once. And yet half this article is taken up moaning about the CL provisions.
There are plenty more positive steps in the amendments other than the introduction of absolute novelty. For example: offering for sale of an item covered by a design patent is now forbidden; statutory damages have been doubled; evidence preservation has been made slightly easier. Another positive is how exhaustive the consultation process was for this law, which made it a lot better than it might have been.
The author also ignores the main flaw that businesses in China have complained to me about: that the law fails to deal adequately with the problem of junk utility model patents with little or no inventiveness being granted and then enforced.
I’m a long time reader writing their first post on this blog, which I read almost daily. It is an excellent resource.
Thanks,
Peter
TF Chen - February 26, 2009 8:32 AM
I agree with Pete that this article is not the best description of China's amendment to the Patent law. Compulsory licensing is never a real issue in China. Actually its Patent law is quite okay. The real problem for a foreign entity regarding patent issues, in my opinion, is its licensing regime.