From the time of the ancients through the middle ages, the Chinese were among the most prolific inventors in the world, but their voluntary insularity prevented most of these inventions from dissemination beyond China. Many of them did not become known outside China until they were reinvented elsewhere. Another characteristic of early Chinese attitudes toward products of the intellect was the prevailing view that such belonged to the community as a whole, including creations that would be within the modern realm of copyright and inventions that would be within the modern realm of patent. Creating property-type protection for the inventor was not, therefore, within the mainstream thinking of Chinese culture. Although these attitudes extended to what we view as copyrightable works and trademarks, our focus in this paper is on discovery and invention, that is, intellectual accomplishments that traditionally have been within the purview of patent laws. Previous efforts by foreign nations to impose systems of intellectual property protection failed because such systems ran counter to a deeply embedded cultural mindset derived first from Confucianism and later reinforced by communist socialism. In the post-Mao era, however, the Chinese government has undertaken a widespread restructuring of its legal and economic systems because its leaders (1) foresaw the critical need to attract foreign investment, and (2) recognized that movement toward free-market principles in many economic sectors would be essential to the long-term health of the Chinese economy. To be successful ultimately, an economy based in significant part on free-market principles must provide legal protection for property interests, including intangible property in the form of functional ideas and original expressions. The post-Mao adjustment has included the enactment of a wide array of laws to serve as a foundation for the new economy. For our purposes, the self-evidently most important law is China's pre-adolescent patent law, first effective in 1985, with substantial amendments effective in 1995 that created a patent system closely resembling those of most of the world's economically developed nations. The major elements of the new Chinese patent system are explained and compared with their U.S. counterparts. A patent system cannot properly perform its role, however, without an effective court system, legal profession, and serious attention to the rule of law. For much of the post-Mao period the Chinese have equated enactment with implementation. Fortunately, during the past several years the Chinese have begun to recognize and attempt to remedy this disconnect. Although today's China has a legal system far more well developed than before, a great deal remains to be done. A functional court system and legal profession are developing, with a substantial number of new law schools having been opened and those closed during the Cultural Revolution reopened, a serious commitment to greatly increasing the number and competency of lawyers, and increased training within China and abroad of law faculty and judges. Even more directly pertinent to our study is that special intellectual property courts have been established, staffed by judges having meaningful training in various areas of technology as well as in the law of patents and other intellectual property. Other nations, especially the U.S., have shown impatience with China's efforts to actualize their intentions to provide realistic patent protection for inventions and other intellectual property. Some of that impatience is justified. One must understand, however, that China has had to overcome enormous obstacles. It has had a patent system for only 15 years, with a number of its most critical provisions being only five years old; when juxtaposed with engrained traditions several thousand years old, patience seems to be warranted, especially in light of very substantial progress in the past 6-7 years. Moreover, the central government in Beijing has had more than a little difficulty with localism-cadres of local political officials and even locally stationed military personnel acting in complicity with local infringers in defiance of Beijing's dictates. Beginning about 1996, however, the central government has begun to take localism seriously and has attempted to at least ameliorate it. Again, however, as long as China continues to show progress, patience is the watchword, and it will be quite sometime before the nation's young patent system can play the role it is supposed to play in incenting technological advancement. If China is willing to reciprocate by more fully opening its markets to outsiders, unencumbered trade relations between the West and the Chinese can only hasten the realization of that role.
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Jun 1, 2011
Richard Gilbert 
Open Access