Part III - The Uncharted Water
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The Making of a Visionary IP Dynasty Counting Down to the New Chinese Patent Law
Part III - The Uncharted Water

By Wei-Ning Yang and Andrew Y. Yen of Hogan & Hartson LLP

This article is the last part of a three parts series that addresses the newly amended Chinese patent law (“2008 amendment”).  In parts one and two of this article, which were published in the previous two issues of Intellectual Property Today, we discussed how the 2008 amendment aims to promote application, exploitation, and protection of patents in China.  In addition, we discussed China’s adoption of a heightened standard for patentability.  In this part of the series, we will focus on potential changes in China’s policy in granting compulsory licenses and China’s initiative to protect genetic resources with its patent law.  We will also highlight how such policies will impact patent strategies in China.

The 2008 Amendment Could Signal the Granting of Compulsory Licenses

Although China has never granted any compulsory license, articles 48 through 58 of the 2008 amendment address this issue specifically. The sheer number of articles that speak to compulsory licensing in the 2008 amendment could signal a potential change in China’s policy regarding granting of compulsory licenses.

Articles 48, 49, 50, and 51 of the 2008 amendment address conditions under which a grant of compulsory license is allowed. Article 48 provides for two situations in which any entity or individual may request the Patent Administrative Dep...

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