Document Type

Article

Publication Date

1-1-2012

Abstract

Although harmonization efforts such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Patent Corporation Treaty regime have brought national patent systems closer, differences among them remain a continuing challenge to innovators in an interconnected global marketplace. The recent development of the Chinese patent system is of particular interest because China is the factory of the world, the most populous market, the home of the patent office that handles the most patent application filings, and the number one source of imports that violate intellectual property rights (IPR). Its patent system affects every company whose supply chain, competitor or market footprint touches China. Moreover, developing countries are increasingly looking to China for an alternative IPR model. China's patent system may well be the basis of new norms for other emerging economies.

This Article explores a possible organizing logic that unifies the Chinese patent system's seemingly unrelated deviations from United States' expectations into a coherent architecture--that of copyright. Specifically, this study compares the Chinese patent system to common abstractions that have come to distinguish patents from copyrights, the two pillars of creative Intellectual Property (IP), and argues that Chinese patent law's movement towards a copyright paradigm is illustrated by idiosyncrasies such as: its preference for protecting particularized, physically fixed embodiments, substantial similarity-based infringement tests, the prevalence of use- and source-based defenses, and the absence of patent specific enforcement administration.

Section I examines four broad aspects of the Chinese patent system for copyright-like features. Many so-called patents in China are narrowly drawn industrial protections against a copyist. Patent defenses resemble that of classic copyright defenses, and Chinese patent administrators and judges occasionally slip into the mode of copyright enforcement. Section II advances several causes to explain the tendency of the Chinese patent system to exhibit copyright-like features. The tendency to focus on copying is a natural response to foreign pressure seeking redress for IPR theft, even though historically these calls arose in the context of copyright piracy and trademark counterfeiting. It also coincides with China's own aspiration for technological development where concrete rights protect improved embodiments while giving wide berth to subsequent improvers. IPR enforcement under the copyrights paradigm is simpler and easier to implement when the state lacks sufficient capacity to address complex infringement issues. Apart from these pragmatic reasons, a copyright paradigm offers a coherent morality of IPR that is probably more palatable than the winner-take-all regime that the traditional patent paradigm presupposes. Section III draws out the implications of a copyrights-tinted patent system. For China, we can anticipate its industrial asset protection to place greater emphasis on the curtailing of unauthorized copying but less concerned with setting out a zone of technological exclusivity. For developing countries, the Chinese approach provides an alternative patent model designed to rebalance innovation and development. Developed countries may also look to China's experiment with copyright-like features for improvements to its own patent system.

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