Studies On Cross-Straits Patent Protection Cooperation Mechanism

With the cross-strait economy progressing towards integration, demand for the establishment of cross-strait patent right protection cooperation mechanism is increasingly urgent. The conclusion of the Cross-Strait Intellectual Property Right Protection Cooperation Agreement and the Cross-strait Economic Cooperation Framework Agreement marks a huge step forward in the cross-strait patent right protection cooperation. By now, however, no substantial progress has been achieved in establishing the cross-strait patent examination cooperation mechanism, which was proposed in the Cross-Strait Intellectual Property Right Protection Cooperation Agreement. The practice of regional patent right protection cooperation mechanism in other countries and regions suggests that patent right protection cooperation should not be confined only to patent examination cooperation; rather, it is supposed to progress toward the integration of patent system. Thus, it is necessary to advance the integration of cross-strait patent right systems step by step.This paper consists of four sections:The first section focuses on the history of and the comparison between patent systems on both sides of the Taiwan Strait. The fact that patent systems on both sides of the Taiwan Straits share a common origin explains why the current systems are almost alike but with minor differences. The differences are mainly reflected in the scope of unpatentable objects, the duration of patent right protection, patent sign, patent examination, and remedies for patent right infringement, etc.The second section deals with the legal nature of the Cross-Strait Intellectual Property Right Protection Cooperation Agreement, and gives clarifications on the content of patent protection cooperation provided in the Agreement. The Cross-Strait Intellectual Property Right Protection Cooperation Agreement is a regional trade agreement under the World Trade Organization framework, with governments of two different customs territories in China as the signing subjects. The most remarkable part of the Agreement lies in its recognition of cross-strait priority. Meanwhile, it is also proposed in the Agreement to set up the cross-strait patent examination cooperation mechanism.The third section points out the significance of practice from other countries and regions regarding regional patent protection cooperation mechanisms, which can be applied by China in building its own one. This is achieved through an analysis of several models including Patent Cooperation Treaty, Patent Prosecution Highway program, European Patent and European unitary patent regime.The fourth section discusses what China should do to steadily advance the establishment of the cross-strait patent right protection cooperation mechanism. The author holds that the first thing to do is to implement and improve the content of patent protection cooperation as provided in the Cross-Strait Intellectual Property Right Protection Cooperation Agreement, i.e. to set up the patent examination cooperation mechanism. Then it is needed to establish the integrated mechanism of the grant of patents. It is the third step to create the regional unitary patent legal system.