Intellectual Property Protection | A Brief Insight into the US and China

A country’s Intellectual Property Protection is usually implemented through a system of legislative guidance, administrative control and judicial enforcement. It is governed and administered by interdependent national organisations.

Countries will have different priorities at different times when it comes to IP laws as it is an area of law that is highly sensitive to developments and trends in the marketplace. Nevertheless, the legal bodies and their legislative and legal mechanisms are contained and governed by their own prevailing legal framework.

IP laws, by and large, exist to safeguard the owners’ rights as well as public interests. Nations differ in what they consider the protection of rights on both sides. Countries once again differ in their court hierarchies and how their IP laws are interpreted and applied.

The nation-based nature of IPP is responsible for the divergence of IP practises around the world. For instance, in the US, the patent system is designed to protect inventive activities aimed at promoting scientific progress. The legal system recognises the importance of such activities in technological progress. In the Chinese patent system, the focus is on the dissemination, implementation and development of the technology.

This divergence is due to the US common law regime which differs to the civil law regime in China. Such systematic differences do extend to decisions regarding patent law even if the laws themselves are similar.

Given that technological development generally (but not always) moves faster than the development of law; the assessment of sufficient or insufficient protection can potentially be derived from the amendments made to the prevailing laws and the time it takes to reach them.

The US is almost alone in granting monopolies to inventors based on the basis of ‘first to invent’. When two or more applicants file a patent for an identical invention, priority is granted to whoever can demonstrate that they were the first. This filing system has, at times, prolonged the granting process–especially when two independent inventors file for identical inventions. Proving who was first can take a considerable amount of time. Most nations grant patents based on who was first to file and not who was first to invent.

While different laws exist regarding inventors’ rights to commercially exploit their inventions, an understanding of the sensitivity with which different legal systems deal with these matters is vital to doing business internationally.


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