System Transplanting And Functional Regressing

There have been two Patent systems in use since the establishment of the People's Republic of China, namely, the dual systems of patent and invention reward transplanted from former Soviet Union in the 1950s and the present patent system started to put to use in 1980s which was emulated from German Patent System. The first patent system was shelved at the 8th year of promulgation due to the anti-right movement. The early 1980s saw the birth of the present Patent system aimed to improve the environment of ushering in foreign investment and technologies and stimulate domestic technological innovation. This patent system, ever since its birth, has been closely geared to the reform and opening up progress of China. It has successfully completed amendments every 8 years (the first amendment in 1992, the second in 2000), both concerning China's accession to WTO. The third amendment under discussion aims to increase the efficiency of the present patent system so as to better serve the implementation of the innovation strategy initiated in recent years.Since the patent system has been bestowed special historic mission at specific historic stage, its fundamental role of encouraging innovation and creation, promoting scientific and technological progress and the modernization might have been diverted a little. The diversion is hard to discern from the internal logic of the patent system, therefore, the dissertation endeavors to study the performance of the patent system, the extent of its ought value realization, modification of the patent system due to changes of competition environment and development trend with the method of economic analysis and statistics which are not often used in jurisprudence with the aim of inducing some constructive suggestions for future promulgation or modification of relevant laws from external observations of the patent system.Chapter one first briefly discusses the dual system of patent and invention reward in the 1950s and then analyses the causes, social effect and the defects of the system.Chapter two dwells upon the external environment of the conception of China's patent system, arguments from home and abroad and the decision process of the patent system, as well as the evolution of some articles of the draft of the Patent Law and its characteristics. Then this chapter summarizes the major elements that are affecting the process and the content of the legislation of the patent law. According to the study, this patent system is a good example of integration of transplanted law and local resources.Chapter three finds out through the means of statistics and economic analysis that the patent law has played certain positive role in promoting technology and economic development, but not without its passive factors that put a brake on further development of technology and economic development. The passiveness has not been attached due importance by Chinese government at that time, partly due to the fact that the special mission of being an envoy for WTO accession overweighed its fundamental role of patent system.Chapter four discusses the whole process of the amendments and some details. China's patent system, after the first amendment, basically met the criterion set by TRIPS. It should have been examined whether it can meet domestic needs. However, the second amendment in 2000 aimed to clear the way for WTO accession rather than addressing the pressing demands for a more adequate patent system.Now China is considering the third amendment of the patent system since it accomplishes the ad hoc obligation. Chapter five analyses the discrepancy between the patent system and the actual demand through mathematical statistics and economic analysis and proposes the major issues and suggestions. Chapter six introduces the patent infringement judgment principles, parallel import principle, definition of non-infringement and indirect patent infringement principles among other tacit principles formed through long periods of judicial practice. Judging from the importance of these implicit principles to judicial judgment and the research achievements and consensus reached upon these principles, they are suggested to be made explicit in the patent system so as to improve the judicial power.Chapter seven analyses the social background of two Patent System in 1950's and 1980's, the influences arising from the difference social background, and the gap between the present Patent System and social request. This part summarizes the relationship between China's social environment changes and the evolution of the patent system based on a brief account of the conception and development of new China's patent system. Then it goes deeper into the relationship between the perspectives of observation and the scientific factor of the legal system and proposes that performance evaluation of the system is a good method to observe a legal system and analyze the presupposed objective realization extent.Chapter eight comes up with a summary and some suggestions on how to ensure the scientific factor of the patent system after elaborating on the relationship between patent system innovation and China's economic interests, for example, democratic and open legislation, the significance of performance evaluation to the realization of the ought value of legal system, system transplanting and local resources protection consideration, the importance of theoretical and practical preparation to the establishment and perfection of system, etc.The approaches and methods adopted in this dissertation are quite innovative which may shed some light on future scientific research of the legal system for legal science and research, legislature and judicial departments. Any comment or constructive suggestion from experts and scholars is gratefully appreciated.