An excellent opinion piece by Ronald A. Cass in the online edition of The Wall Street Journal Asia discusses the “Third Amendment,” a series of changes to China’s patent laws which were adopted in late 2008. Among other detail in the article, Mr. Cass points out what may be referred to as “the good” and “the bad” in these changes to China’s patent laws:
The Good: A new standard of “absolute utility” will be used, requiring that proposed inventions must not only be novel within China, but novel when viewed against all prior inventions on a worldwide basis.
The Bad: Expansion of existing “compulsory licensing” provisions, which allow the government to force patent holders to issue low-royalty (or royalty-free) licenses to use of their patents. (Readers will note that your author has written in previous posts on the subject of compulsory licensing.)
It is too early to know what the ultimate implications of these changes to China’s patent law will mean to holders of both China and non-China IP rights, as the Third Amendment will be subject to administrative and judicial interpretation by the State Intellectual Property Office (SIPO) and the People’s Court, respectively. However, your author believes that the Chinese government will probably lean more towards an interpretation that will provide more (and not less) protection for foreign holders of China and non-China IP rights, as the Chinese government will be keen over coming years to ensure global enforceability of its own homegrown patents.
The article may be found at http://online.wsj.com/article/SB123419814824764201.html?mod=googlenews_wsj.
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