Lessons from the Chinese patenting system

Peter K. Yu, Drake University Law School, in his paper `

Building the Ladder: Three Decades of Development of the Chinese Patent System' traces the development of the modern Chinese patent system. It begins with a historical overview of the protection China offered to inventions during the dynastic and Republican eras. The article then identifies five different stages of development of the modern Chinese patent system. Going from stage to stage, this article demonstrates how a developing country could strategically build a patent system that is tailored to its own social, economic and technological conditions. The article concludes with five key lessons China's patent reform can provide to other developing countries.

Five Lessons:

First, a one-size-fits-all model does not work well at the global level, and retaining policy space is essential to the successful development of a country’s patent system. As commentators have widely noted, overprotecting intellectual property rights can harm a country as much as under-protecting them. While policy makers and industry leaders from intellectual property-exporting countries are eager to offer policy advice on how best to improve the patent system, policy makers from developing countries should pay close attention to their countries’ local needs, national interests, technological capabilities, institutional capacities and public health conditions.

Secondly, and relatedly, countries should maximise the flexibilities available in the existing international patent system.To be certain, the policy space available under today’s system is much more limited than what was available in the system’s early days.countries could still decide whether they want to promote the development of utility models, prohibit patent grants on second indications or introduce public interest exceptions into their laws.They

could also explore the use of alternative models to generate incentives for inventors.

Thirdly, countries that dare to develop their patent system at different paces or in different directions than what major intellectual property-exporting countries expect will likely be heavily criticised as pirating nations, or even “rogue” players in the international intellectual property community.

Fourthly, there seems to be a “crossover point” at which countries go from a pirating nation to a nation respectful of patent rights.Such crossover took place in many once-developing countries, including the United States, Germany, Japan, Singapore and South Korea.

Finally, there is no quick and easy solution to the massive piracy problems confronting developing countries. It took developed countries centuries to develop their patent system to its current stage.