A Comparative Study Of The Chinese And The American Patent Marking Statutes

Although it has long been established that the recording and/or publishing of aspecification and claims of an issued patent by the National Patent Office providesconstructive notice to the world of a patentee’s rights under both the Chinese PatentLaw and the U.S. Patent Law, the patent marking statutes are made totally differentlyin these two countries. Under the Chinese Patent Law, it is patentee’s right ratherthan its obligation to mark its patented products. The patentee does not need tobear any adverse consequences if it does not affix any patent marks to its patentedproducts. However, under the U.S. patent law, the patentee is obligated to give thenotice to the public of its patent rights by affixing patent marks to its patentedproducts. If it fails to do so, the patentee will have no right to get thecorresponding damage in the future patent infringement lawsuit.Obviously, the above provision conflicts with the established constructive noticefunction of the recording and/or publishing of a specification and claims of an issuedpatent by the National Patent Office. Consequently a few questions arise: Firstly,since the recording and/or publishing of a specification and claims of an issuedpatent by the National Patent Office has been recognized as a constructive notice tothe world of a patentee’s rights, why the patentee is obligated to affix patent marks to its patented products under the U.S. Patent Law? Secondly, is it reasonable to setthe patent marking as the condition for the patentee to get the corresponding damagein the future patent infringement lawsuit? Last but not the least, what is the modelsignificance of the above provision under the U.S. Patent Law to the Chineselegislators? Above questions are raised in Chapter One of this article.Therefore, the author studies the Chinese and the American patent marking statutesrespectively in Chapter Two and Chapter Three for above questions and then conducta comparative study of them in Chapter Four. Finally, the author draws aconclusion as follows: the different legislative mode of the patent marking statutesunder the Chinese Patent Law and the American Patent Law depends on thecondition of the country, which accords with the process of the construction of ruleof laws on intellectual property rights in each country. It is recommended that theChinese legislator consider amending the Chinese Patent Law by reference to theAmerican practice.