Executive Summary

Current Chinese Patent Law requires “inventiveness,” a concept similar to the Unites States’ requirement that a patent’s subject matter be non-obvious. One difference between the two requirements is that the Chinese standard is lower, in that the definitions of prior art and “ordinary skill in the art” make it harder in China to invalidate a patent application. Also, there is no “motivation from market force” factor in Chinese Patent Law, nor indication that Chinese Patent Law will adopt such a factor in the future for the purpose of invalidating a patent for being obvious.

The gap between the Chinese Patent Law and the United States patent law will therefore widen after KSR v. Teleflex, unless the next amendment to the Chinese Patent Law, due 2008, adopts some significant changes.

Download

This paper was written by Santa Clara Law student Xin Ma for an Advanced IP Research class. It is a 17 page, 204k PDF: Obviousness Under Chinese Patent Law