Patent law in modernmainland China began with the promulgation of thePatent Law of the People's Republic of China,[1] in 1984.[2]: 19 This law was modeled after patent systems of othercivil law countries, particularly Germany and Japan.[3]
The PRC's early regulations provided for inventors' patent rights, but these were abolished fairly quickly under the view that patent rights were incompatible with socialism.[2]: 183 China then followed the model of the Soviet Union's inventor certificates, honorary titles that were granted to inventors without remuneration.[2]: 183
Just prior to theCultural Revolution, China completely abolished its patent regulations.[2]: 17–18
In 1985, China acceded to theParis Convention for the Protection of Industrial Property, followed by thePatent Cooperation Treaty in 1994.[4] When China joined theWorld Trade Organization (WTO) in 2001, it became a member of theTRIPS agreement.
To comply with its international obligations, as well as to facilitate its development into an innovative country,[5] China has since amended its Patent Law three times: first in 1992, then again in 2000, and most recently in 2009.[citation needed]
Pharmaceuticals and chemicals were not patentable under the 1984 Patent Law, but became patentable after the law was amended in 1992.[2]: 20 A bilateral memorandum of understanding with the United States made this amendment to domestic law necessary.[2]: 20 China accepted this requirement because it would have ultimately been necessary in order for China to re-enter theGeneral Agreement on Tariffs and Trade.[2]: 21
The 2000 amendments to the Patent Law were designed to ensure China's compliance with its obligations under the TRIPS Agreement.[2]: 20
Patents in China are granted by theChina National Intellectual Property Administration (CNIPA),[6] which was renamed in English on 28 August 2018 fromState Intellectual Property Office (SIPO). There are three types of patents: invention patents,utility model patents, and design patents.[7] Invention patents are substantively examined, while utility model patents are subject only to a formal examination.[7] Patent examination is done by theState Intellectual Property Office (SIPO), which had over 14,000patent examiners in 2019 and an average patent pendency time of 16.5 months,[8] which is ca. 65% of the median pendency time at theUSPTO. In 2012 invention patents, utility models and design patents had life terms of 20 years, 10 years and 10 years, respectively. Maintenance of issued patents in China requires payment of annual fees.[citation needed]
Patents are construed both literally and according to thedoctrine of equivalents. In China, an equivalent is an element of an article which is "insubstantially different from"[9] an integer of thepatent's claim: a technical feature which can be conceived easily by the patent's addressee that performs substantially the same function as the claim's integer, in substantially the same way, achieving substantially the same result. The "all elements" rule applies, such that for an article to be an infringement it must contain features identical or equivalent to all elements of the patent claim.[citation needed]
Any person can contest a patent's validity. There is a post-grantopposition procedure available through SIPO, and actions may also be initiated at the Patent Review Board (PRB). Appeals may be made to theBeijing IP Court. Before 2014, appeals were made to theBeijing Intermediate People's Court.[citation needed]
Patent litigation proceedings arebifurcated, meaning that issues of infringement are tried separately (and in a separate venue) from invalidity.[10]: 140 Normally infringement proceedings will be stayed (on application by the defendant) pending outcome of the invalidity hearing.[citation needed]
In April 2017, SIPO revised its patent examination guidelines to also allow the patenting ofbusiness methods provided the claimed method had technical features.[11]
In cases of joint patentees, the default rule in China is that each patentee can grant nonexclusive license without the other joint patentees' consent.[10]: 140 Joint patentees can avoid application of this default rule by agreement, however.[10]: 140
As compared to the United States, China has more non-patentable matters.[10]: 140
Since the 1980s, The Central government of PR China adopted several programs aimed at stimulating "indigenous innovation" in severaltechnological fields, including biotechnology, space, information technology, new materials, etc. As a part of these efforts, the city ofShanghai introduced in 1999 a patent subsidy program for local businesses. By 2003 similar programs have been adopted by almost every province in PR China.Such programs quickly resulted in PR China becoming world largest patent filer in terms of patent families filed and patents issued: in 2020 China accounted for 46% all patent applications in the World.[12]
The policy of subsidies for patent prosecution in PR China is expected to end in 2025.[13]
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