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Patents - Chapter 2 - Intellectual Property Law of China - Third Edition
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Originally from Intellectual Property Law of China - Third Edition
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§ 2.01 Introduction
China’s patent law system is generally well developed and well managed. The patent Examiners of the China National Intellectual Property Administration (the “CNIPA”) (formerly the “State Intellectual Property Office”) are well educated and usually provide considered reasoning when objections and/or rejections are raised. However, the Patent Law of the People’s Republic of China (the “Patent Law”) still needs to be revised in order to codify some areas of practice and to more closely follow international harmonization trends. In response to this need, the Chinese government adopted the Third Amendment to the Patent Law (the “Third Amendment” or the “amended Patent Law”). Both the Second Amendment and the Third Amendment are discussed in this chapter.
[1]—Legislation
China’s Patent Law was adopted by the National People’s Congress (NPC) of China on March 12, 1984 for the first time when a European style patent system and Patent Office were established in China. The European Patent Office advised the Chinese government on the drafting of the Patent Law and the creation of the Patent Office, and undertook to train technically skilled staff to work as patent Examiners. The Patent Law took effect on April 1, 1985 and has been amended three times in 1992, 2000 and 2008, respectively.
The changes in the first two amendments mainly focused on fulfilling China’s commitments to the international community and bringing the Patent Law in compliance with internationally accepted norms. The First Amendment came into force in 1993, in which a number of significant improvements were made, most notably the inclusion of chemical compounds as patentable subject matter and inaugurated China’s membership in the Patent Cooperation Treaty (PCT). The Second Amendment was approved on August 25, 2000, and came into force on July 1, 2001. The Second Amendment (the “Prior Patent Law”) brought the Patent Law in compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.
Aaron Wininger is a Senior Attorney and Schwegman Lundberg & Woessner’s Director of China Intellectual Property. He counsels both U.S. and Chinese companies on portfolio development and preparation of their patent applications and office action responses. He has worked with clients in the areas of software, networks (wired and wireless), lasers, medical devices, semiconductors and physics. Mr. Wininger prosecutes both Chinese and U.S. trademarks. He has also drafted and prosecuted hundreds of U.S. and international patent applications in a broad spectrum of areas, including computer hardware and software, the Internet, multimedia distribution systems, computer games, digital and analog circuitry, and semiconductor design and fabrication, to name a few. Most recently, he has counseled Chinese companies on freedom to operate analyses for their entry into the U.S., represented a U.S. gaming company with operations in China, handling Series A and IP issues in China through to IPO; a U.S. scanning electron microscope company, handling their patent portfolio from incorporation through exit via acquisition, and a U.S. wireless company through acquisition. His knowledge of both the Chinese and American markets allows him to advise his clients as they expand their patent portfolios and look for investors to help the company grow.
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