Patent Law In China And Us

INTRODUCTION:

A Patent is a privilege to desist others from using, making, offering for sale or selling a particular invention. Unlike trademark and common law rights, patent protection must be approved by the patent and trademark office. Only new, acceptable and not an obvious advancement over known technology can be registered under Patent Act. Utility and plant Patents are having life span of 20 years and design patents are having life span of 14 years from the date of the application. Thus, a patent is merely a contract or an agreement between an inventor and the federal government. The federal government awards the inventor the sole right to desist others from1 using the inventions for a set period of time in exchange for revelation of new technology to the public through the patent office.

One example of patentable subject matter is the pop-top opener on most beverage cans. This was first created by Ermal Fraze, who founded Dayton Reliable Tool & Mfg Co in 1949. The pop-top opener was first patented in 1963 and since then other patents improving on the original have been granted. Under UK or European laws, business methods can not be patented whereas US is having liberal provisions in this regard.

A utility patent extends safeguard for the method or function of one's invention. This patent is more complex in nature than compared to design patent and is expensive to obtain the same as lot of inputs have to be submitted to PTO for registration. A utility patent enjoys wide protection than the design because patenting a function or method offers broader, stronger coverage. A person who copies your invention should avoid all the claims of your patent to avoid action against him. The joint inventors can apply for patent as joint inventors. A financier to an invention can not be registered under Patent Act as a joint inventor.

There are patents known as "preemptive patent', which transpires when individuals or companies secure patents and they never plan to license or market. They will wait till others to invent on the same line and when they started to earn money, the real patent holder will intervene to collect revenues on the pretext of "patent infringement".

US PATENT LAW:

The first patent law was enacted in U.S as early as 1790. A patent holder has the executive right to make, sell, use or import a patented process or product. Section 271 of the Patent Act safeguards the patentee's exclusive rights against infringement. A person, who makes, uses, offers to sell, or sells an invention patented in the United States, without authority, infringes the patent. Federal courts have exclusive jurisdiction over patent infringement suits.

The invention must be directed to "patentable subject matter"-

 3 types of patents: Utility patents, design patents, and plant patents.

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 Utility and plant patents have basic terms of 20 years from the filing date of the corresponding patent application; however, design patents have a term of 14 years from the date of grant of the design patent

 The invention must be "novel. "

Under U.S system, first-to-invent" rather than a "first-to-file" patent system.

CHINESE INTELLECTUAL PROPERTY RIGHTS:

First Chinese Patent law began in 1950. Chinese intellectual property law is having a subtle history. It comprises of mixture of intellectual sharing and socialist legal canon. As such, the individualized perception of property in intellectual product has had some extent uncomfortable fit in the Chinese culture and law. Since 1980, however, China has moved to legal position much similar to Western model of intellectual property by introducing legal reforms and series of economic reforms. In China, patent should be of inventive, novelty, and should have practical applicability. Chinese IP law recognizes only inventions that can be patented and do not recognize "plant varieties".

The patent Law of the People's Republic of China explicitly concentrates on the acts that form patent infringement and misuse. Article 11 extends to owners of patents, the privilege to "make, utilize or dispose the patented product, the right to allow the use or sale of product got by the third party from a patented method and the right to dissuade any third party from importing without the permission of the patent holder for the abovementioned purposes. The Chinese Patent Law supports international patent exhaustion if Articles 11 and 62 are analyzed together. Article 62(1) mainly spotlights on genuine character of the patented goods. Moreover, paragraph (2) pardons a gullible third party who sells a patented product which is not actually permitted to be made and sold by the patentee.

Hence, once the patented product is made by a legally entitled party, a buyer may freely resell the products to a third party, who in turn also resells the product even if the original sale was unauthorised. Hence, the absent of a provision as regards to limitation on the site of the first sale, a foreign buyer should be free to import parallelley the patented goods into China,

But China is now forced to fulfill the obligations under TRIPS. The duty of the intellectual property scholars in China is to seek a balance between firm enforcement of individual rights and charting out exceptions or limitations to those rights and to encourage alternative models for managing copyrights in certain areas or sectors like science common models or creative common models. However after embracing to TRIPS, China is forced to deviate from the long established, open approach to creative work.

In China, exploitation of a patent without the patentee's authorization constitutes infringement. In case of infringement, a suit may be filed in the People's Court or a request may be made to "the authorities for patent work" to administratively resolve the infringement issue.

China's current patent law grants three types of "inventions-creations."

 Inventions, utility models, and designs.

Three requirements for patentability:

 Novelty - Before the filing date of the patent application, no identical invention or utility model has been publicly disclosed in publications anywhere or has been publicly

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