INTELLECTUAL PROPERTY LAWS IN THE UNITED STATES A

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 de

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of 1988, 17 U.S.C. secs. 901-914 or first commercial exploitation, whichever first occurs. The protection is a form of sui generis copyright protection. Computer software can be patented but portions of it, such as mathematical algorithims, may not be patentable. However, Bartels & Sheldon say, that under Diamond v. Diehr 450 U.S. 175 (1981), "many computer programs . . . are now more likely to be statutory subject matter" and therefore patentable. According to Gregory et al., "in the United States, copyright law is the predominant method of protecting computer software." It is only so protectible if it contains some originality, the Supreme Court having rejected the "sweat of the brow" test in Feist Publications v. Rural Telephone Service Co. 499 U.S. 340 (1990). Users have considerable latitude to reverse engineer computer software, even if they thereby gain a competitive advantage under Atari Games v. Nintendo of America Inc., 975 F.2d 832, 842-843 (Fed. Cir. 1992) and Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). The patent, trade secret and copyright laws have all been useful in protecting biotechnology, "the use of living organisms as material from living organisms to make commercial products

Category: Government - I