PATENTS. COMPARISON BETWEEN CHINA AND SPAIN

INTELECTUAL PROPERTY LAW

PATENTS IN SPAIN AND CHINA. ( COMPARISON)

SILVIA MARIA GONZÁLEZ. MASTER OF LAW. UNIVERSITY OF XIAMEN. CHINA.

INDEX:

I.WHAT´S A PATENT?

II.EXAMPLES

III. REQUIREMENTS

IV.UNPATENTABLE THINGS

V.CASES

VI.RIGHTS AND DURATION

VII.LABOR INVENTION

VIII.TYPES

IX.TARGETS AND USES

X.ADVANTGES AND DISADVANTAGES

XI.CONCLUSIONS

XII.ADVISES

XIII.REFERENCES

PATENTS: WHAT IS A PATENT?

SPAIN

INVENTION; SOME NEW ARTICLE, MACHINE, OR PROCESS THAT CAN BE USED IN THE INDUSTRY. ALSO, IT COULD BE A SOLUTION TO RESOLVE A TECHNICAL PROBLEM.

OR

IT IS A DOCUMENT ISSUED BY THE GOVERNMENT THAT GRANTS TO THE INVENTOR THE EXCLUSIVES RIGHTS OF HIS CREATION IN A LIMITED TIME.

CHINA

PATENT IS A RIGHT,

GRANTED BY STATE

INTELLECTUAL PROPERTY

OFFICE OF PEOPLE'S

REPUBLIC OF CHINA, TO

EXCLUDE OTHERS FROM

MAKING, USING, SELLING OR

IMPORTING AN INVENTION

THROUGHOUT PEOPLE'S

REPUBLIC OF CHINA WITHOUT

THE INVENTOR'S CONSENT

EXAMPLES OF PATENTS IN A MOBIL TELEPHONE

TRADEMARKS: COPYRIGHTS:

MANUFACTURED BY NOKIA SOFTWARE

CODE

PRODUCT "N95"

INSTRUCTION MANUAL

SOFTWARE "SYMBIAN","JAVA" RINGTONES

PATENTS:

DATA PROCESSING METHODS

SEMICONDUCTOR CIRCUITS

CHEMICALS ...

COMMERCIAL SECRETS: ?

TRADEMARKS: COPYRIGHTS:

MANUFACTURED BY NOKIA SOFTWARE

CODE

PRODUCT "N95"

INSTRUCTION MANUAL

SOFTWARE "SYMBIAN","JAVA" RINGTONES

PATENTS:

DATA PROCESSING METHODS

SEMICONDUCTOR CIRCUITS

CHEMICALS ...

COMMERCIAL SECRETS: ?

REQUIREMENTS

INNOVATIVE (ART: 54 CPE) USEFUL INDUSTRIAL APPLICATION (ART: 57 CPE) NOT BE OBVIOUS ORIGINAL (ART 56 CPE)

STEPS TO ACHIEVE A PATENT IN SPAIN:

APPLICATION

EXAMINATION

STEPS IN CHINA: APPLICATION EXAMINATION AND APPROVAL

WHATS THINGS WE CAN NOT PATENT?

1) -IN SPAIN :THE DISCOVERIES, SCIENTIFIC THEORIES AND MATHEMATICAL METHODS (ARTICLE 52.2 (A) EPC)- THE ESTHETIC CREATIONS (ARTICLE 52.2 (B) EPC);- THE SCHEMES, RULES AND METHODS FOR PERFORMING MENTAL ACTS, PLAYING GAMES OR DOING BUSINESS, AND COMPUTER PROGRAMS (ARTICLE 52.2 (C) EPC)

2) THE INVENTIONS WHOSE COMMERCIAL EXPLOITATION WOULD BE CONTRARY TO PUBLIC ORDER OR MORALITY (ARTICLE 53 (A) EPC).

3) PLANT VARIETIES OR ANIMAL BREEDS AND ESSENTIALLY BIOLOGICAL PROCESSES OF PLANTS OR ANIMALS (ARTÍCULO53 (B) EPC).

4) THE METHODS OF SURGICAL OR THERAPEUTIC TREATMENT OF HUMAN OR ANIMAL BODY AND DIAGNOSTIC METHODS APPLIED TO HUMAN OR ANIMAL BODY (ARTICLE 53 (C) AND 54.4-5 ARTICLES CPE)

ACCORDING TO ARTICLE 5 AND ARTICLE 25 OF THE CHINA PATENT LAW, THE FOLLOWING ITEMS ARE UNPATENTABLE IN CHINA:

(1) ANY INVENTION-CREATION THAT IS CONTRARY TO THE LAWS OF THE STATE OR SOCIAL MORALITY.

(2) SCIENTIFIC DISCOVERIES;

(3) RULES AND METHODS FOR MENTAL ACTIVITIES;

(4) METHODS FOR THE DIAGNOSIS OR FOR THE TREATMENT OF DISEASES;

(5) ANIMAL AND PLANT VARIETIES;

(6) SUBSTANCES OBTAINED BY MEANS OF NUCLEAR TRANSFORMATION.

COMPUTER PROGRAMMES IN SPAIN AND IN CHINA:

COMPUTER PROGRAMS "AS SUCH"ARE EXCLUDED FROM PATENTABILITY (ARTICLE 52.2 (C) EPC), BUT ...NOT BE EXCLUDED FROM PATENTABILITY IF, WHEN THEY ARE WORKING ON A COMPUTER, AND CAUSE AN ADDITIONAL "TECHNICAL EFFECT" BEYOND THE PHYSICAL INTERACTION "NORMAL" BETWEEN THE PROGRAM (SOFTWARE) AND COMPUTER (HARDWARE) .CONSEQUENTLY, COMPUTER PROGRAMS ARE NOT AUTOMATICALLY EXCLUDED FROM PATENTABILITY.

CAN COMPUTER SOFTWARE BE PATENTED IN CHINA?

COMPUTER PROGRAMS AS SUCH CANNOT BE PATENTED, BUT MAY BE PROTECTED UNDER THE "REGULATIONS ON COMPUTERS SOFTWARE PROTECTION", FORMULATED IN ACCORDANCE WITH THE COPYRIGHT LAW. AN INVENTION CONTAINING A COMPUTER PROGRAM MAY BE PATENTABLE IF THE COMBINATION OF SOFTWARE AND HARDWARE AS A WHOLE CAN REALLY IMPROVE PRIOR ART, BRING ABOUT TECHNICAL RESULTS AND CONSTITUTE A COMPLETE TECHNICAL SOLUTION.

EXAMPLES AND CASES IN SPAIN:

DOLBY LABORATORIES WAS A PIONEER IN TECHNOLOGY NOISE REDUCTION IN THE 1960'S.USED A COMBINATION OF PATENT AND TRADEMARKS PROTECT THE TECHNOLOGY TO TRANSMIT DOLBY CONSUMERS WAS A QUALITY INDICATOR. THAT'S HOW A SMALLEARLY-STAGE COMPANIES DID BUSINESS WITH LARGE ESTABLISHED COMPANIES AND BECAME IN A HIGH TECHNOLOGY COMPANY, WITH A SUCCESS GROWING.

W.L. GORE WAS FOUNDED BY THE GORE FAMILY BASEMENT OF HIS

HOUSE IN 1958. W.L. GORE DEVELOPED AND PATENTED NEW

PRODUCTS BASED ON POLYTETRAFLUOROETHYLENE (TEFLON ®).

WITH THE BENEFIT OF PATENT PROTECTION FOR MOST THEIR

PRODUCTS AND TO BE ABLE TO CREATE BRANDS SOLID AS GORE-

TEX ®, THE COMPANY TODAY HAS 8,000 EMPLOYEES.

RIGHTS IN SPAIN

LAW AVOIDS THAT OTHER PERSONS COULD EXPLOIT COMMERCIAL AN INVENTION WITHOUT AUTHORIZATION.

THE PATENT PROTECTS THE INVENTION GRANTING TO HIS HOLDER THE RIGHT TO PREVENT THAT ANYONE REPRODUCES OR USES THE INVENTION WITHOUT HIS

ASSENT.

THE RIGHTS THAT AN EUROPEAN PATENT AWARDS ARE THE SAME THAT AWARD THE NATIONAL PATENTS GRANTED IN EVERY CONTRACTING STATE FOR THE ONE THAT HAS BEEN GRANTED (ARTICLE 64 CPE).

LAW YIELDS THE OWNERSHIP OF A PATENT AND TO CONCLUDE CONTRACTS OF LICENSE (ARTICLES 71-73 CPE).

THE MAXIMUM TERM OF PROTECTION IS 20 YEARS (ARTICLE 63 CPE).

WHAT IS THE DURATION OF CHINESE PATENT?

THE DURATION OF CHINA PATENT FOR INVENTION IS TWENTY YEARS, THE DURATION OF PATENT FOR UTILITY MODEL AND DESIGN IS TEN YEARS, COUNTED FROM THE FILING DATE IN CHINA.

ANY NATURAL OR JURIDICAL PERSON, EVEN A COMPANY CAN PRESENT A REQUEST (ARTICLE 58 CPE).

A REQUEST WILL BE ABLE TO BE EQUALLY PRESENTED BY SEVERAL SOLICITORS TOGETHER (ARTICLE 59 CPE).

THE REQUEST WILL HAVE TO UNDERSTAND THE DESIGNATION OF THE INVENTOR (ARTICLE 81 CPE).

THE RIGHT TO THE EUROPEAN PATENT BELONGS TO THE INVENTOR OR TO HIS SUCCESSORS (ARTICLE 60.1 CPE).

IF THE INVENTOR IS AN EMPLOYEE, THE RIGHT TO THE EUROPEAN PATENT WILL DECIDE IN AGREEMENT WITH THE LEGISLATION OF THE CONTRACTING STATE OF THE CPE IN WHOSE TERRITORY THE EMPLOYEE EXERCISES HIS PRINCIPAL ACTIVITY (ARTICLE 60.1 CPE).

WITH GENERAL CHARACTER, ANY INVENTION REFERRED TO THE LABOR AREA OF A WORKER WILL BE A PROPERTY OF HIS EMPLOYER.

IT IS POSSIBLE THAT THE WORKER RECEIVES AN AWARD OR BONUS, DEPENDING ON THE CONTRACTING STATE OF THE AFFECTED CPE.

THE INVENTOR PRESERVES THE RIGHT TO BE MENTIONED AS SUCH INVENTOR BEFORE THE OEP (ARTICLE 62 CPE).

RIGHTS IN CHINA

ARTICLE 11 AFTER THE GRANTING OF PATENT FOR AN INVENTION OR UTILITY MODEL, UNLESS IT IS OTHERWISE PRESCRIBED BY THIS LAW, NO ENTITY OR INDIVIDUAL IS ENTITLED TO, WITHOUT PERMISSION OF THE PATENTEE, EXPLOIT THE PATENT.

AFTER THE GRANTING OF A PATENT FOR A DESIGN, NO ENTITY OR INDIVIDUAL SHALL, WITHOUT PERMISSION OF THE PATENTEE, EXPLOIT THE PATENT, THAT IS TO SAY, THEY SHALL NOT MAKE, PROMISE TO SELL, SELL, OR IMPORT THE PRODUCT INCORPORATING ITS OR HIS PATENTED DESIGN, FOR PRODUCTION AND BUSINESS PURPOSES.

ARTICLE 12 WHERE AN ENTITY OR INDIVIDUAL EXPLOITS THE PATENT OF ANYONE ELSE, IT OR HE SHALL CONCLUDE A LICENSING CONTRACT WITH THE PATENTEE AND PAY A PATENT ROYALTY TO THE PATENTEE. THE LICENSEE HAS NO RIGHT TO LICENSE ANY ENTITY OR INDIVIDUAL OTHER THAN THE ENTITY OR INDIVIDUAL AS STIPULATED IN THE LICENSING CONTRACT TO EXPLOIT THE SAID PATENT.

ARTICLE 13 AFTER THE PUBLICATION OF AN APPLICATION FOR A PATENT FOR INVENTION, THE APPLICANT MAY REQUIRE THE ENTITY OR INDIVIDUAL EXPLOITING THE INVENTION TO PAY AN APPROPRIATE FEE.

PRESENTATION OF REQUEST IN PATENTS OFFICE:

A LABOR INVENTION:

IT IS EXECUTED BY THE WORK DURING THE FORCE OF A CONTRACT OR LABOR RELATION CONSEQUENCE OF THE RESEARCHING ACTIVITY PROVIDING THAT THE SAME ONE CONSTITUTES THE OBJECT OF THE LABOR CONTACT. THE WORKER HAS BEEN CONTRACTED FOR THIS END. THE LABOR INVENTIONS BELONG TO THE BUSINESSMAN OR EMPLOYER

RIGHTS Y WMFH

CLAUSE BETWEEN EMPLOYEE AND OWNER OF THE COMPANY. THIS CLAUSE SPECIFIES THAT ANY INVENTION IS A PROPERTY OF THE EMPLOYER.

WORKS MADE FOR HIRE (WMFH). THE EMPLOYEE INVENTED SOMETHING IN THE COURSE OF HIS WORK, AND UNTIL IT INTERHAPPENS AN EXPLICIT SPECIFIED CONTRACT (WHO)THE RIGHT TO (COYPYRIGHT OR PATENT) BELONGS TO THE EMPLOYER.

IN CHINA:

ART 56-67: ARTICLE 57. WHERE A DISPUTE ARISES AS A RESULT OF THE EXPLOITATION OF A PATENT WITHOUT THE AUTHORIZATION OF THE PATENTEE, THAT IS, THE INFRINGEMENT OF THE PATENT RIGHT OF THE PATENTEE, IT SHALL BE SETTLED THROUGH CONSULTATION BY THE PARTIES. WHERE THE PARTIES ARE NOT WILLING TO CONSULT WITH EACH OTHER OR WHERE THE CONSULTATION FAILS, THE PATENTEE OR ANY INTERESTED PARTY MAY INSTITUTE LEGAL PROCEEDINGS IN THE PEOPLE'S COURT, OR REQUEST THE ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS TO HANDLE THE MATTER. (15 DAYS)

TYPES

COPYRIGHT: LITERATURE, ART, THE THEATRE, MUSIC, PHOTOGRAPHIES..

MARKS: NAMES, LOGOS.. REGISTERED DESIGNS: THE REGISTERED DESIGNS PROTECT

THE EXTERNAL APPEARANCE OF A PRODUCT. THEY DO NOT PROTECT HIS TECHNICAL ASPECTS. THERE INCLUDE NEW BOSSES, ORNAMENTS AND FORMS

COMMERCIAL SECRETS: THE COMMERCIAL SECRETS COVER INFORMATION NOT KNOWN BY THE PUBLIC. IF THE ONE THAT POSSESSES THE ABOVE MENTIONED INFORMATION LOOKS AFTER ITSELF OF KEEPING HER CONFIDENTIAL (FOR EXAMPLE, THE SIGNING OF THE CONTRACTS OF CONFIDENTIALITY WITH HIS WORKERS / PARTNERS) IT WILL BE ABLE TO SUE ANY PERSON THAT ONE REMOVES IT

PATENTS: GLOBAL TARGETS

To protect the industrial and intellectual property To stimulate the economy across the business To develop a competitive advantage on the market To reflect the society and his evolution

WHAT THE PATENTS ARE USED FOR ?

ECONOMIC: IT EXPLORES MARKETS. IT PREDICTS COMPETITORS

FINANCIER: IT AVOIDS TO DUPLICATE INVESTIGATIONS. IT SAVES COSTS

LEGAL. PROCESS OF VIOLATIONS AND OF USE OR SALE TO THIRD PARTIES

HISTORICAL: IT STUDIES A PERIOD EDUCATIONAL: IT EXERCISES THE CREATIVE THOUGHT MARKETING: IT COMPLETES LIST OF BANK INFORMATION INFORMATIONAL: IT SATISFIES THE CURIOSITY AND THE

LEARNING

PATENTS

ADVANTAGES

- EXCLUSIVITY ALLOWS MORE

INVESTMENT AND RETURN ON

INVESTMENT.

- ENFORCEABLE LEGAL RIGHT

AND SOLID.

ALLOWS TO MARKET THE

INVENTION (LICENSING).

DISADVANTAGES:

-DISCLOSES THE INVENTION TO

COMPETITORS. (AFTER 18

MONTHS).

- IT CAN BE EXPENSIVE

- THE PATENT IS ENFORCEABLE

ONLY AFTER A GRANT (THIS

CAN TAKE BETWEEN 4 AND 5

YEARS).

SOME CONCLUSIONS:

• PREVENT OTHERS FROM MAKING, USING, OFFERING FOR SALE, SELLING OR IMPORTING INFRINGING PRODUCTS IN THE COUNTRY WHERE THE PATENT WAS GRANTED. SELL SUCH RIGHTS OR TO CONCLUDE LICENSING CONTRACTS. FOR A MAXIMUM PERIOD OF 20 YEARS FROM THE DATE OF FILING THE PATENT APPLICATION.

IT IS NECESSARY TO SEARCH FOR PATENTS.

•

THE PATENT DOES NOT GRANT THE RIGHT TO USE THE INVENTION

ADVISES:

DO NOT MAKE PUBLICATIONS BEFORE SUBMITTING THE

APPLICATION: FOR EXAMPLE, AVOID ARTICLES, PRESS

RELEASES, PRESENTATIONS / POSTERS / CONFERENCES

DISCUSSIONS OR BLOG ENTRIES.

DO NOT SELL PRODUCTS INCORPORATING THE INVENTION

BEFORE FILING.

NOT TEACH COURSES OR PRESENTATIONS BEFORE SUBMITTING

THE REQUEST, EXCEPT UNDER A NONDISCLOSURE AGREEMENT.

SEEK PROFESSIONAL ADVICE ASAP!

SUBMIT THE APPLICATION BEFORE THE OTHERS!

TO CONCLUDE

IT IS ESTIMATED THAT 80% OF COPYING AND COUNTERFEITING OF PRODUCTS SEIZED IN THE WORLD COMES FROM CHINA. THE "BUSINESS" OF CHINESE FAKES WORTH ABOUT 50,000 MILLION DOLLARS A YEAR, ACCORDING TO COMMERCE DEPARTMENT ESTIMATES U.S. SINCE SOME FORUMS HAVE DESCRIBED THE "DRAMA" OF COUNTERFEITING IN CHINA AS A CULTURAL PROBLEM, DIFFICULT TO SOLVE, WHILE OTHERS INDICATE THAT IT IS A QUESTION OF LEVEL OF DEVELOPMENT AND PROLIFERATION OF COPIES RECALL IN SPAIN IN THE YEARS SEVENTIES AND EIGHTIES. THE FORMER TEND TO REMEMBER THE MAXIM OF CONFUCIUS "YOU LEARN BY COPYING AND IMITATION AND PRAISE SHOULD BE CONSIDERED ...." INDEED CONVERGE IN THE CHINESE CASE-CULTURAL ELEMENTS OF ANCESTRAL THEIR CURRENT LEVEL OF DEVELOPMENT, ENCOURAGING THE PRODUCTION, ACCUMULATION AND PROGRESS AGAINST THE CREATIVITY AND IMAGINATION. ALL ANALYSTS OF THE PROBLEM AGREE THAT THE KEY PROBLEM LIES NOT IN LAWS, BUT IN ITS APPLICATION. IN FACT, IN THE PROCESS OF "PREPARATION" FOR ENTRY INTO THE WTO, CHINA HAS REFORMED IN 2000-01 THE TRADEMARK AND PATENT LAWS, ENACTED IN 1982 AND 1985, RESPECTIVELY. TODAY, THE GENERAL RULES ON INTELLECTUAL PROPERTY IN CHINA ARE SIMILAR TO THOSE OF ANY WESTERN COUNTRY. STILL, THE RAMPANT VIOLATION OF THESE STANDARDS AND THE IMPUNITY OF OFFENDERS ARE DUE TO A COMBINATION OF FACTORS

.

CONFLICTS BETWEEN ADMINISTRATIONS: AS STATED AT THE BEGINNING OF THIS MODULE, CHINA IS HIGHLY DECENTRALIZED IN ADMINISTRATIVE PRACTICE, WITH FREQUENT CONFLICTS BETWEEN ADMINISTRATIVE LEVELS.

THIS STARTS THE CENTRAL GOVERNMENT WILL PROSECUTE OFFENDERS DO NOT MOVE TO THE CITIES, SOMETIMES MORE CONCERNED WITH MAINTAINING EMPLOYMENT AND THUS PREVENT A GIVEN PLANT CLOSURE OF COUNTERFEIT PRODUCTS. LEGAL GAPS: DESPITE THE ADEQUACY OF LAWS BY WESTERN STANDARDS, THERE ARE SOME LOOPHOLES THROUGH WHICH THEY RUN OFFENDERS. FOR EXAMPLE, MANY FAKE PRODUCTS MANUFACTURED WITH IMPUNITY BUT UNMARKED BY A MARK JUST BEFORE SHIPPING THE GOODS TO THE BUYER. IF ENTERING THE FACTORY, THE POLICE CAN NOT CONSIDER THESE NON-BRANDED ITEMS AS FAKES.

JUDICIAL SYSTEM: THE COLLUSION BETWEEN JUDGES AND LOCAL OFFICIALS IS ONE OF THE SERIOUS PROBLEMS AT THE TIME TO PROSECUTE OFFENDERS. THIS IS COMPOUNDED BY INADEQUATE PREPARATION OF THE JUDGES IN INTELLECTUAL PROPERTY ISSUES AND THE FACT THAT PENALTIES ARE NOT VERY DISSUASIVE. HOWEVER, THEY ARE CREATING SPECIALIZED COURTS IN INTELLECTUAL PROPERTY ISSUES, WHILE SEVERAL LEGAL REFORMS HAVE LOWERED THE THRESHOLD FOR CONSIDERATION OF CRIMINAL OFFENSE

REFERENCES

• WWW.ESPACENET.COM

• WWW.EPO.ORG• WWW.OEPM.ES• HTTP://WWW.SLIDESHARE.NET/KETTYPI/PROPIEDAD-

INTELECTUALPATENTES-LOGOS-Y-MARCAS-PRESENTATION• HTTP://WWW.ITURNET.ES/GUIA_PATENTES_MARCAS/

#PROPINTELEC• HTTP://WWW.SIPO.GOV.CN/SIPO_ENGLISH/• HTTP://WWW.CHINATRADEMARKOFFICE.COM/INDEX.PHP/PTREG• THE DETAILED RULES FOR THE IMPLEMENTATION OF THE PATENT

LAW OF THE PEOPLE´S REPUBLIC OF CHINA ARE HEREBY PROMULGATED AND SHALL ENTER INTO FORCE AS OF JULY 1, 2001.

• AMENDING THE PATENT LAW OF THE PEOPLE¡¯S REPUBLIC OF CHINA ADOPTED AT THE 6TH SESSION OF STANDING COMMITTEE OF THE 11TH NATIONAL PEOPLE¡¯S CONGRESS OF THE PEOPLE¡¯S REPUBLIC OF CHINA ON DECEMBER 27, 2008)

ADDED:LAW 11/1986, 20TH OF MARCH. PATENTS

REAL DECRETO 441/1994, 11TH MARCH-(BOE NÚM. 84, 8TH OF ABRIL 1994.