INTELLECTUAL PROPERTY LAWS IN THE UNITED STATES AND THE PRC
This research paper summarizes the intellectual property laws of the United States and the People's Republic of China (PRC) and compares and contrasts the protection available to American intellectual property in the two nations.
Legal Protection of Intellectual Property in the United States
Intellectual property is extensively protected under the American legal system. That protection falls into four principal categories: (1) Patents; (2) Trademarks and Tradenames; (3) Trade Secrets; and (4) Copyrights. Special statutory protection is afforded certain high technology products and services as noted below.
Constitutional basis for protection. Art. I, Sec. 8, Cl. 8 of the U.S. Constitution provides that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discovery."
1. Patents. The issuance of patents is governed by 35 U.S.C. 1-367 (1988) and is administered by the U.S. Patent and Trademark Office (PTO) within the Department of Commerce. According to Gregory et al., a patent gives the patent owner "a statutory right, for a limited period of time [17 years] to exclude others from making, using, or selling the patented invention." According to Foster and Shook, to be patentable, "an inventive idea must relate to new processes, machines, composition of matter, plants, or designs." It must be new or novel, useful and nonobvious. In a patent application, the owner must disclose any known prior art. If the invention was published or has been in public use or offered for sale within one year prior to the time the patent application is filed, a patent will be denied under 35 U.S.C. sec. 102(b). Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co., 153 F.2d 516 (2d Cir. 1946), cert. denied, 328 U.S. 840 (1946). The fir...