China's problematic recognition of a right of priority based on an application filed in Taiwan

Abstract

Before China entered into the ‘Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection’ with Taiwan, China did not recognize a right of priority based on a Taiwan application. Under Article 2 of the Cross-Strait IP Agreement, China agreed to permit Taiwanese applicants to claim priority based on their Taiwan applications. China has issued three regulations to comply with Article 2. However, by doing so, China violates Article 2.1 of the TRIPS Agreement because a Taiwan application is a legitimate foreign application under Article 4 of the Paris Convention and, therefore, non-Taiwanese applicants may claim priority based on a Taiwan application. China also violates the doctrine of ‘Most-Favoured-Nation (MFN) Treatment’ under Article 4 of the TRIPS Agreement because the grant of priority based on a Taiwan application is only applicable to Taiwanese applicants, which discriminates against non-Taiwanese applicants of any WTO member states other than Taiwan.