Patent Law

Obviousness Under Chinese Patent Law

By William F. Heinze

When determining obviousness, Chinese Patent Law uses substantially the same factors and elements as the corresponding United States statutes and case law, except with lower standards in determining ?one with ordinary skills in the art,? higher requirement for prior art (although likely to change in the future), and greater leeway for the examiner or judge to decide on the validity of the patent. After KSR, it is generally believed that it will be harder for a patent to satisfy the ?obviousness? requirement in the United States. However, there is no sign yet that China will raise its bar to patentability, especially given the fact that the ?market force? is not a factor in either Chinese Patent Law or other Chinese patent regulations. It is not mentioned in the latest proposed amendment to the Chinese Patent Law. Therefore, the difference in patentability between China and the United States, although small, may increase after the KSR ruling.

Full post as published by I/P Updates on March 18, 2008 (boomark / email).