May 19, 2019

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Intellectual Property Law in China

Intellectual property rights are recognized and upheld in China thanks to the operation of a plethora of national laws and international conventions. While a national legal framework has existed for decades, the ratification of various treaties has led to the revision of domestic laws to be more in step with international requirements.

Trademark law

Trademark law is managed by the China Trade Mark Office. Appeals can be heard by the Trademark Review and the Adjudication Board, or via the court system.

Trade marks and service marks must be registered in order to receive protection in China. This means unregistered marks cannot seek protection unless they are recognized as well known marks within the definitions set out by law.

Copyright law

Under the Copyright Law of China and the accompanying Implementing Rules for the Copyright Law of China, copyright generally subsists until 50 years after the death of the creator. In the case of photographic or film creations made by companies or organizations, copyright subsists until 50 years after the first instance of publication.

China is a party to the Berne Convention and the Universal Copyright Convention. In order to give effect to these treaties as well as several bilateral treaties to which China is a party, the Regulations on Implementation of International Copyright Treaties, which offer protection to copyright holders overseas, were enacted.

The Computer Software Protection Rules as well as the Measures for Computer Software Copyright Registration, extend copyright protection to computer programs in accordance with requirements set out in the Berne Convention, which prevails in the event of any dissimilarity.

Patent law

The Patent Law of China has been amended extensively to comply with the provisions set out in the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty and the Agreement in Trade-Related Aspects of International Property Rights (TRIPS) administered by the World Trade Organization.

Patent law in China is administered by the State Intellectual Property Office, which has the power to grant invention, utility and design patents.

Patent rights can be enforced under the Patent Law, subsidiary legislation in the form of the Enforcement Regulations for the Patent Law, as well as the patent office’s Regulations on Administrative Patent Cases.

The validity of a patent can be disputed by any person. Patents can be contested on three grounds: novelty, inventiveness and industrial applicability.

In China, absolute novelty must be proven. Thus, for a patent to be valid it must apply to a new invention that has never been disclosed or published prior to the priority date, which may be the filing date of the patent or an earlier date.

A patent may be valid if it applies to an invention that satisfies the requirement of inventiveness, which requires that it showcase advancement in the state of the art that would not be obvious to a skilled observer.

Lastly, a patent can be contested on the grounds that it does not have industrial applicability or cannot be used in an effective manner.