Mainland China’s historic reputation of riding rough-shod over intellectual property rights seems, at least as to matters of form, something of the past. In a presentation to the Boston Bar Association on February 18th, a team of intellectual property attorneys from Beijing presented highlights of new Chinese intellectual property legislation designed to protect trademarks and patents.
Interesting particularly is the level of civil litigation relative to the enforcement of trademarks. While the definition of “infringement” differs somewhat from American practice, numerous cases (particularly clashes between American companies and indigenous trademark holders) seem vigorous and far-reaching.
On the patent front, particularly focusing on patent protection for biologics and pharmaceuticals, it seems (as here in the United States) that the skill of the draftsman of the patent application is essential, particularly since certain items of intellectual property are not generally thought to be patentable under Chinese law: methods for diagnosis, therapeutic methods, new dosage regimes. There also are differences with American practice, including a certain inflexibility for the introduction of critical data arising after the patent application has been filed. Also interesting is the timeline for the patent process; upon filing, you have 36 months to request an examination (of course most filers opt for shorter periods), and the average processing time thereafter to reach a decision is 21.8 months. There is a procedure for reexamination of denials, with the average reexamination period 12.5 months. There is also a method for challenging an existing patent, and the average processing time for invalidation requests is 6.6 months.
Finally, there is an accelerated patent process available for applications containing at least one allowable U.S. claim, the so-called PPH (Patent Prosecution Highway).
It may be too early to tell the net practical effect of current Mainland China patent practices, but in terms of both governmental structure and the organization and activity of the private patent bar, there is reason to hope for a robust system of protection in the future.