CHINA
“[Tese revisions] will allow IP owners to apply to register non-traditional trademarks such as colours, moving images, holograms, sounds, scents and tastes. Tese changes will be an extraordinary boost to trademark owners competing in the Chinese and world marketplaces.”
Patent owners wishing to secure protection for their computer-implemented inventions may not be afforded such luxuries.
Jiang says: “Te current Patent Law provides in Article 2 that invention for purposes of Patent Law means any new technical solution relating to a product, a process or improvement thereof. According to Article 25(2), rules and methods for mental activities are not patentable subject matter. Both Articles 2 and 25 underpin the legal basis for determining whether computer soſtware-implemented inventions can be patented in China. Terefore, computer soſtware is generally considered to constitute rules and methods of mental activities and cannot be protected by Patent Law.”
He adds: “However, as there is no definition of what constitutes a ‘technical solution’, in
practice, the technical requirement standard has been loosened and patent examiners have some leeway in dealing with that. According to the Guidelines for Patent Examination, published by SIPO, a soſtware-related invention is patentable if it resolves a technical problem, uses a technical measure and reaches a technical result. But unlike rulings in the US and Europe, claims to a medium containing computer soſtware (a storage medium only defined by a program recorded on it, for example) are not allowed in China.”
To-do list
Chinese intellectual property law has come far during Jiang’s career, but he says that it still has a way to go before it meets international norms of protection and enforcement. China needs to continue to make positive and practical contributions to the development of the international IP system, says Jiang. “As China becomes a major player in the global economy, it needs to strengthen its dialogue and exchanges with foreign countries and international organisations,” he explains. “[It must also] co-operate with other major economic powers by
all means, particularly in the area of enforcement and damages.”
Jiang also wants the country’s IP system to be closely aligned with the needs of the Chinese public, enabling people to easily and fully protect their intellectual endeavours and increase Chinese innovation.
He says: “IP protection is at the heart of China’s endeavour to achieve these goals. Tere is still a long way to go before China becomes an innovation-oriented nation. Te IP system should be further brought into full play to enhance innovation in the whole society, to transform modes of economic development and to increase core national competitiveness.”
China is home to a huge population with a huge potential—potential that it is putting to good use. Chinese Premier Wen Jiabao wants China to rely on scientific advancement and the improvement of labour quality for future economic growth, and an effective IP system will help to make this a reality. Jiang says that the country is recognising this fact as it makes concrete efforts to improve the quality and efficiency of its economic development.
www.worldipreview.com
World Intellectual Property Review May/June 2011
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