Patent Right in China: Influences from the West and China’s Responses

Abstract

At the beginning, China was reluctant to establish a patent law system. Patent is a concept of Western origin, and Chinese patent law has been developed under foreign pressure. Reform and development with respect to patent rights and enforcement nevertheless have become an important area to attract foreign investment. Over time, the country has realized that the utilitarian nature of this private right suits its development needs and it now fully embraces the concept. Patent law has become one of the main targets of the government in its attempt to establish a modern legal system. It has also become a symbol of the country’s technological advancement. Patent rules in China are now very similar to those of its Western counterparts. The enforcement mechanism has been reformed with a view to enhancing patent rights. The administrative remedy of patent infringement is a unique feature in China’s patent enforcement system, which has its drawbacks. By contrast, the establishment of Intellectual Property Courts is a clear sign of the development of a more autonomous, independent, and professional judiciary in the area of patent law. The most watched area with regard to the patent system at this moment is the government’s application of antitrust law in the patent licensing practices, especially in the field of standard and essential patents (SEPs). The trend of the cases in this field suggests that China is very active in enforcing its antitrust laws. On the one hand, China is enhancing the protection of patent rights when domestic patent holders are gaining ground in terms of the quality of their patents. On the other hand, China is using its antitrust law to limit the power of foreign SEP holders. From this perspective, the Chinese government is using antitrust laws to achieve what it cannot do by patent law. Under the TRIPS Agreement, there is no room for discriminatory treatment in patent law. Through the aggressive enforcement of antitrust laws, however, the Chinese authorities can limit the patent rights of foreign holders while at the same time empowering domestic patentees. Legal rules in China in the field of patent law are an interesting case study. China accepted patent law from the West and also created many unique responses along the way. Many of these unique responses fulfilled their temporal missions and gradually became less important. Now China is using another Western legal concept, antitrust law, to create the optimal patent law environment for its needs.