Although the Chinese Patent Law is a mere 31 years old, it has already gone through 3 major revisions, the last being 6 years ago. In its most recent effort, China just released the “Draft 4th Amendments to the Chinese Patent Law” for public comments, which are due by Jan 1, 2016. The proposed amendments will significantly strengthen areas such as patent enforcement and broaden design patent protection.
Very few would argue that broader scope is easier in Asia than in the US. Not surprisingly, this is because the laws and practice are different. The US law entitles an inventor to a patent unless the USPTO carries the burden of showing that the claims lack novelty, are obvious, or lack utility… But no patent laws in Asia are so strongly on the side of the inventor as compared to the US. So oftentimes the practice is that the burden of proof is on the inventor/applicant to show that they deserve a patent. Saying it another way, in the US it is your right to get a patent, while in Europe or Asia it is more like a privilege.
As a result of filing the world’s highest number of patent applications, China is often attacked for trading in quality for quantity. However, Michael Lin of Marks&Clerk explains that a better understanding of the State Intellectual Property Office (SIPO) and the Chinese patent system shows that patent quality is in fact, not declining but increasing.
As many following India IP issues are well-aware, in 2012 India issued the 1st compulsory license (CL) to Natco for Bayer’s anti-cancer drug Nexavar. The granting of this CL was further upheld by the Intellectual Property Appellate Board in Spring 2013, leading to great concern and condemnation in the international IP community, especially by those in the Pharma field. Also in Spring 2013, BDR Pharmaceuticals, Ltd. filed the 2nd Indian application for a CL (still pending) for Dasatinib, Bristol Meyers Squibb’s blockbuster anti-cancer drug. Thus it appears to be the beginning of a trend for Indian pharma companies to request CLs, and I believe that this trend will continue and likely increase.
In 2011, an Advisory Committee (AC) was instructed by the Hong Kong Government to conduct a review of the Hong Kong Patent System. On 7 February 2013, the AC issued its formal Report (209 pages long) recommending various changes to the system which will affect not only Patentees, but the entire Patent profession in Hong Kong. In general, the AC’s Report recommends three changes which can be described as being quite bold in some areas, whilst at the same time, being conservative as the changes permit much of the existing system to be retained.
Believe it or not, Patents are enforceable in China. Trademarks are enforceable in China. Copyrights are enforceable in China. The devil is in the details. Certainly if you are trying to enforce your patent against a company in the boondocks far west of Chengdu, and that company happens to be the largest employer in the district, then you are going to have problems. No one can / should tell you differently. However, can you tell me with a straight face that these same problems would not occur in the US if the situation was reversed – where a foreigner is asserting a patent against a local, respected employer in a rural area of the US?