I was recently asked by a professor of US copyright law what distinguishes the Chinese IP system different from the United States.
Here are the five key aspects that I quickly came up with:
- The Chinese system is modeled on the German system, although it has its own unique characteristics. Issues like service invention remuneration, the role of utility model patents, bifurcated validity and infringement determinations, neighboring rights in copyright, etc. all derive from the early German influence on China. In some cases, China’s IP regime has been unwilling to reform some of these early German models despite subsequent German reforms and influence from other countries, such as the United States.
- The Chinese system retains aspects of a non-market economy in its IP regime. China has incorporated IP into its five year and other plans. There is a high emphasis on public intervention in IP rights, including an extensive administrative system, and other means of state intervention in the creation, exercise and enforcement of IP rights.
- China is a larger and more China-focused IP regime than the United States. China’s patent and trademark offices and its litigation docket are several times larger than the United States. Moreover, most of the applicants and most of the litigants are Chinese. In general foreigners play a more limited role in prosecuting and litigating IP rights in China than foreigners do in the United States. This high quantitative activity does not necessarily correlate with high quality.
- China retains a notion that IP is good for society. In general, Chinese society is very supportive of efforts to create an innovative society where IP plays an important role. Unlike other transition economies, China adopted IP laws before it enacted real property and property laws. China’s leadership believed that IP was a “property right” for “intellectuals” that would help stimulate economic activity after China emerged from the cultural revolution.
- IP has played a pioneering role in Chinese civil law reform. Many of China’s first civil law reforms originated with IP, including introduction of preliminary injunctions, combined civil, criminal and administrative tribunals, specialized and well-trained IP tribunals and courts, limited discovery, and develop of case law/precedent. China has consciously experimented with civil law in IP before bringing these reforms to areas other than IP.
I am interested to know if readers any suggestions for changes to this top five list.