Thursday, December 29, 2005
Third round of Patent Law revisions: discourage junk patents
SIPO is preparing the third round of revisions of the Patent Law of the PRC. The revisions might include improvement of the current examination mechanism for utility model and design patent applications. SIPO also advised local governments to channel more incentives to invention patents rather than utility models and designs, because the latter two lack inventiveness (see below article 22 of the Patent Law of the PRC).
In China there are three different patentable objects of law:
Article 2 of the Patent Law of the PRC: For the purpose of this Law, "inventions" refer to inventions, utility models and designs.
SIPO does not carry out detailed examinations on applications for utility model and design patents in order to save costs. This could lead to junk patents, according to Tian Lipu commissioner of the State Intellectual Property Office.
Local governement incentives encourage patent applications based on existing technologies and designs. However, according to Tian utility model and design patents could improve intellectual property awareness.
Article 22 of the Patent Law of the PRC:
Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.
Novelty means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application describing an identical invention or utility model that was recorded in patent application documents published after the said date of filing.
Inventiveness means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement.
Usefulness means that the invention or utility model can be made or used and can produce positive results.