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Abstract

Chinese patent law has a short history whereas the United States ("U.S.") system has a more robust history. This article chronicles important remaining differences between Chinese and U.S. patent laws including the utility model successfully employed at State Intellectual Property Office of the People’s Republic of China ("SIPO") and in the Chinese courts, but not available under U.S. law. Some differences are discussed in regard of patent appeals, reexaminations for invalidity, China’s lack of a reissue process to correct major errors, China’s inventors remuneration process and compulsory licensing of patents, and China’s unique requirement of post termination compensation to support a covenant not to compete. This article further discusses recent changes in U.S. Patent law, as a result of the American Invents Act, that have no counterpart in China. This includes a discussion on changes in the rules governing when prior art applies against applications, new misjoinder rules and elimination of qui tam patent suits rules. This article discusses the new procedure in the United States Patent and Trademark Office ("USPTO") called post grant review and a companion process for review of validity of granted patents called inter partes review. These new proceedings have the potential for invalidation of patents in a manner far less expensive than in court. However, the devil will be in the details of the regulations and fees yet to be promulgated by the USPTO or reviewed by the public. Whether China or the United States got it right is too early to tell and is anyone’s guess.