The Fighting Against Unfair Patent Applications in China

Abstract

The organizational and economic and legal aspects of combating unfair patent applications for inventions, utility models, and industrial designs in China are considered. The study was carried out on the basis of the analysis of foreign documents devoted to patent legislation in China, the practice of fi ling patent applications in bad faith, regulatory measures taken by the Chinese government to combat this phenomenon. It is noted that despite China’s leading position in terms of invention and patent activity, the shift of emphasis towards qualitative aspects of patent activity, there remains a significant number of fraudulent patent applications in the country. The regulatory framework, application dynamics, features of patent examination, the role of the IP Key China project, law enforcement practice and administrative procedures of the National Intellectual Property Office of China were analyzed. Typical examples of fraudulent patent applications are considered: submission of a plagiarized or fabricated patent application by a patent agency; use of a false address and contact information by the patent agency for fi ling a patent application; organized production, repurchase and re-sale of patents. The peculiarities of acquiring rights to patents defined by the Patent Law of the People’s Republic of China (for inventions, utility models, and industrial designs) are analyzed, the reasons for the advantages of applications for utility models compared to applications for inventions are considered, and the features of strategic patenting and enforcement of utility models in the PRC are highlighted. Examples of combating dis-honest filing of patent applications for industrial designs are provided. It is noted that the Chinese government is working to strengthen the regulation of market competition and enforcement of unfair competition. Measures in this direction include the abolition of incentives and subsidies for patents for utility models and industrial designs to promote and encourage high-value innovation and R&D, change the international perception of Chinese patents as low quality; increasing the number of expert groups to improve the quality of examination, shortening the time for consideration of applications, introducing “the principle of good faith” as a legal basis for invalidating a patent. China’s experience is recommended for study by the Ukrainian National Office of Intellectual Property and Innovation and the Antimonopoly Committee of Ukraine.