In the United States, the patent protection of inventions goes back to the Constitution. Many of the leaders of the new republic were farmers and tradespeople. Benjamin Franklin was a scientist and inventor. They appreciated the principle of protecting intellectual property so that innovative people had a financial incentive to profit from their ideas.
In China, protection for patents goes back to a law passed in 1984. In 1985 it agreed to the Paris Convention for the Protection of Industrial Property. It also signed the Patent Cooperation Treaty of 1994. In 2001, by joining the World Trade Organization, it agreed to the Agreement on Trade-Related Aspects of Intellectual Property Rights.
In the U.S., to be patented, a process, article or machine must be new, useful and nonobvious. It comes with the right to prevent others from using the patented device without securing agreement from the owner. It lasts 20 years.
Chinese law defines three types of patents. Invention patents are similar to U.S. patents. Utility model patents protect only new shapes and structural features. They are not subject to stringent review and last only 10 years.
In the U.S., anyone believing their patent has been infringed upon may file a challenge with the U.S. Patent and Trademark Office. If they lose that challenge, they may take their case to federal court. The process is long and costly. The outcome is always uncertain. If items that infringe a patent are being imported into the country, the patent owner may opt to ask the International Trade Commission to bar the items from being imported. The system can be misused by patent trolls. Often these are companies that do not make or do anything except buy up unused patent. Then they file infringement suits against companies they claim are infringing upon their patents.
Under Chinese law, companies can and do file infringement lawsuits when they claim another company has infringed upon their patents.
In recent years, many patents have been filed in China with the State Intellectual Property Office. Apparently this is being encouraged by the government, and it’s also an outgrowth of China’s stress upon research and development. In 2012, SIPO granted more patent applications than any other country in the world. Almost 80 percent of those patents went to Chinese applicants. In the United States, less than half of patent applicants go to U.S. citizens or companies. And many Chinese patents are utility model patents, which don’t exist in the U.S.
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