Recent Proposed Amendments to China’s Patent Law: Will It Help to Improve the Enforceability of Patents in China?

By Alex Zhang and Xuelin Ma*

I. INTRODUCTION

By 2015, the Chinese government plans to double the number of patent applications filed with the State Intellectual Property Office ("SIPO"), such that applications will increase from 1 million in 2010 to 2 million per year.¹ According to SIPO’s "National Patent Development Strategy (2011-2020)" (the "Patent Strategy"), "China will rank among the top two in the world in terms of the annual number of patents for inventions."² The Chinese government also expects that "the number of overseas patent applications filed by Chinese entities and individuals will double."³ However, this ambitious plan cannot relieve concerns about the quality of Chinese innovation. The basis for these concerns is that "the vast majority of these applications are for utility model patents that merely undergo a preliminary examination for formalities rather than substance—a concept that does not exist in the US."⁴ According to a Shanghai-based patent attorney quoted by the Economist: "Patents are easy to file but gems are hard to find in a mountain of junk."⁵

China has undertaken a number of efforts to transform from a country where products are merely "made" to one where they are innovated, designed, and branded.⁶ During the past 20 years, China has made several significant and meaningful amendments to its intellectual property laws. Nevertheless, China has realized that its current patent system without further improvement could hinder the Patent Strategy: "The patent system has not become fully integrated with development of socialist market economy, and its role has not been brought into full play in guiding industrial restructuring and upgrading and promoting China’s innovation capacity."⁷ The systems and mechanisms for patent administration need to be improved and legal enforcement of patent protection needs to be further enhanced. To this end, on August 10, 2012, SIPO published the first draft of the proposed Fourth Amendment to China’s Patent Law for public comment. This article provides an overview of the legislative history of China’s Patent Law and its amendments, analyzes the proposed Fourth Amendment’s positive and negative effects, and provides additional recommendations for the new amendment.