Internationalization of Chinese patent law and practice


University of British Columbia

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Master of Laws - LLM




With the conclusion of the GATT Uruguay Round in 1994, a new set of international intellectual property rules has been established: the Trade Related Intellectual Property Rights, including Trade in Counterfeit Goods ("TRIPS Agreement"). The TRIPS Agreement represents a new level of co-operation and internationalization of intellectual property rights (IPR) protection worldwide. It surpasses the pre-existing international IPR protection standards set out in the Paris Convention in terms of both minimum standards and enforcement measures. Thus, the TRIPS Agreement represents a culmination of the effort of each member state and non-member state in bringing their IPR standards in lines with the new international standards. This thesis examines the internationalization of Chinese patent law and practice in the context of the TRIPS Agreement by tracing the historical development of China's patent regulations and practices from the early beginnings of the patent idea in the late Qing Dynasty to its present state in the post-Deng era. This thesis concludes that the economic theory finds its fine application in China as the patent protection mechanisms have been adopted primarily as an instrument for economic gains. The accelerated harmonization and internationalization of Chinese patent law and practice, notably after the Sino-American IPR negotiations, is the product of China's genuine responses to its growing internal economic problems and external trade sanction pressures. In legislative terms, China has in place a far more advanced patent law. However, enforcing its IPR laws has been rather problematic. As with any advanced functional patent system, which demands a capable economy as well as an independent judicial system, China currently lacks such either economic or political resources. It is hoped that with the further development of its economy and its improved capacity to deal with IPR issues, China will find a way to balance the powers of its various organs, including that of the courts. Only when the courts become the powerful arbiters of last resort as their Anglo-American counterparts are, will China have a meaningful and truly internationalized patent law and practice.

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