lem, enforcement measures taken to date
have not been effective and have not deterred massive IPR infringements. Chinese
leaders talk a good plan but execution
often leaves a lot to be desired. There are
several factors that undermine enforcement measures, including China’s reliance
on administrative instead of criminal
measures to combat IPR infringements,
corruption and local protectionism at the
provincial levels. Chinese mandated policies limit resources and training made
available to enforcement officials, and
there is a complete lack of public education regarding the economic and social
impact of counterfeiting and piracy.
With the advent of the Internet Age
we are now seeing an increase in cyber
espionage by China. During 2010 Chinese hackers reportedly broke into computers of oil and gas companies in the
U.S., Taiwan, Greece and Kazakhstan
and stole sensitive information about
bidding on oil and gas fields, operations
and financing. There have been reported
attacks on American financial, oil and
chemical industries. Thousands of Chinese computer enthusiasts belong to
hacker clubs and security experts say
some are supported by China’s military
to develop a pool of possible recruits. Experts say military-trained civilian hackers also might work as contractors for
companies that want to steal technology
or business secrets from rivals.
China has the world’s biggest population of Internet users, with more than 450
million people online, and the Chinese
government promotes Web use for business and education. But most experts say
security for many computers in China is
so poor that they are vulnerable to being
taken over and used to hide the source of
attacks from elsewhere.
Industrial property rights as
defined by the Chinese
There are three kinds of industrial property rights in China, including patent,
trademark and copyright.
Patent is composed of “patents for invention,” “patents for utility model” and
“patents for design.” A brief summary of
China’s patent, trademark and copyright
laws are described below.
36 | Coatings World
China
Patent
China’s first patent law was enacted in
1984 and has been amended three times—
1992, 2000 and 2008—to extend the
scope of protection. The most recent
amendments were made in 2008 (the
2008 Patent Law), and became effective
on Oct. 1, 2009. In December 2009, the
Supreme People’s Court (SPC), China’s
highest court, adopted a set of judicial interpretations regarding cases involving
patent disputes (the 2009 Interpretation).
In the beginning of 2010, the Implementing Regulations of the PRC Patent Law
(the 2010 Implementing Regulations)
were amended accordingly to reflect the
changes to the 2008 Patent Law. The
2010 Implementing Regulations took effect on Feb. 1, 2010. To comply with
TRIPs, the latest amendment extended the
duration of patent protection to 20 years
from the date of filing a patent application. Chemical and pharmaceutical products, as well as food, beverages, and
flavorings are all now patentable. China
follows a first to file system for patents,
which means patents are granted to those
that file first even if the filers are not the
original inventors. This system is unlike
the U.S., which recognizes the “first to invent” rule, but is consistent with the practice in other parts of the world, including
the European Union. As a signatory to the
Patent Cooperation Treaty in 1994, China
will perform international patent searches
and preliminary examinations of patent
applications. Under China’s patent law, a
foreign patent application files by a person or firm without a business office in
China must apply through an authorized
patent agent, while initial preparation
may be done by anyone. Patents are filed
with China’s State Intellectual Property
Office (SIPO) in Beijing, while SIPO offices at the provincial and municipal level
are responsible for administrative enforcement.
What is the duration of a Chinese
patent? The duration of a patent in China
for invention is twenty years. The duration of patent for utility model and design
is ten years, counted from the application
date in China.
What kind of invention cannot be
patented in China? According to Article 5
and Article 25 of the China Patent Law,
the following items are not patentable in
China:
1. Any invention or creation that is
contrary to the laws of the state or
social morality or that is detrimental to public interest;
2. Scientific discoveries;
3. Rules and methods for mental activities;
4. Methods for the diagnosis or for the
treatment of diseases;
5. Animal and plant varieties; and
6. Substances obtained by means of
nuclear transformation.
For processes used in producing products referred to in items ( 4) of the preceding paragraph, patent right may be
granted in accordance with the provisions
of this Law.
Trademark
China’s trademark law was first adopted
in 1982 and subsequently revised in 1993
and 2001. The new trademark law went
into effect in October 2001, with implementing regulations taking effect on September 15, 2002. The new trademark law
extended registration to collective marks,
certification marks and three-dimensional
symbols, as required by TRIPs. China
joined the Madrid Protocol in 1989,
which requires reciprocal trademark registration for member countries, which
now include the U.S. China has a ‘first-to
register’ system that requires no evidence
of prior use or ownership, leaving registration of popular foreign marks open to
third party. However, the Chinese Trademark Office has cancelled Chinese trademarks that were unfairly registered by
local Chinese agents or customers of foreign companies. Foreign companies seeking to distribute their products in China
are advised to register their marks and/or
logos with the Trademark Office. Further,
any Chinese language translations and appropriate Internet domains should also be
registered. As with patent registration, foreign parties must use the services of approved Chinese agents when submitting
the trademark application, however foreign attorneys or the Chinese agents may
prepare the application. Recent amendments to the Implementing Regulations of
