Since 1985, when China’s first Patent Law came into effect, China has established a legal protection system for utility models. At present, after four revisions of the Patent Law, China’s utility model patent legal system has also been improved. However, among the authorized utility model patents, those that fully meet the necessary conditions of novelty and inventive step might be in the minority. Of course, this phenomenon is not unique in China. The purpose of this chapter is to illuminate the ongoing optimization of the Chinese utility model patent system in the context of the development of China’s overall patent system. Accordingly, Part Ⅰ traces the emergence of China’s Patent System, including the Chinese utility model patent-based subsystem. Part Ⅱ centers on the basic contours of the Chinese utility model patent system. Part Ⅲ then summarizes existing deficiencies of the Chinese utility model patent system and future development trends. It concludes with a discussion of potential implications of proposed revisions to the Chinese utility model patent system.

While national rules regarding the scope, availability and issuance of utility models vary from country to country, most utility model regimes offer protection for tangible products, with many, but not all, jurisdictions excluding processes, biological materials and computer software from the scope of protection. The duration of utility model protection ranges from five to fifteen years, with most countries offering ten years of protection. In most countries, utility model applications are not formally examined and must simply disclose the product in question. Given the lack of examination, obtaining utility models is generally viewed as faster and cheaper than obtaining patents. This combination of speed and cost, in theory, makes utility models potentially attractive to small and medium enterprises (SMEs) that cannot afford to obtain full patent protection. Similar considerations have also been raised as advantageous to innovators in low-income countries.

This chapter discusses the interface of artificial intelligence (AI) and intellectual property (IP) law. It focuses on the protection of AI technology, the contentious qualification of AI systems as authors and/or inventors, and the question of ownership of AI-assisted and AI-generated output. The chapter also treats a number of miscellaneous topics, including the question of liability for IP infringement that takes place by or through the intervention of an AI system. More generally, it notes the ambivalent relationship between AI and the IP community, which appears to drift between apparent enthusiasm for the use of AI in IP practice and a clear hesitancy toward catering for additional incentive creation in the AI sphere by amending existing IP laws.

The global landscape for existing utility model rights is a helpful starting point to the discussion on utility model innovation policy at the country-level as well as firm strategy. WIPO data indicates that approximately 3.0 million utility model applications were filed globally in 2022, a growth rate of 2.9% from the previous year and close to the global total of 3.5 million applications for standard patents. Only about one-half of the world’s countries provide for utility model systems, yet companies from around the world acquire these rights. Utility models are important players in the IP environment, and the unique qualities of the system and differential representation require specific analysis. In this chapter, we review existing empirical data and present additional data regarding UM filings and litigation worldwide. Our purpose is to provide background and context for the more detailed discussion in the remaining chapters in this book.

Women do not receive their fair share when it comes to patenting and are far less likely to own patents. This disparity is due in part to the inherent biases in science, technology, and the patent system and in part to the high costs of the patent application process. This chapter therefore proposes an unconventional new regime of unregistered patent rights to relieve women and other disadvantaged inventors of such costs and biases and thereby increase their access to patent protections. To explain the proposal, this chapter details the challenges facing women and other disadvantaged inventors in applying for patents as well as the fact that other intellectual property regimes, such as copyright and trademark, allow such unregistered rights. The chapter also addresses a number of objections that the proposal would inevitably raise. In particular, it shows that, because the proposed unregistered patent system would grant rights for only three years and protect only against direct and knowing copying, these rights would be unlikely to deter incremental or complementary innovation. Such rights would also be fully subject to invalidation under a preponderance of the evidence standard.

Theoretically, all inventions are equal under the law: they receive the same scope of protection for the same period, backed by the same remedies. In reality, such equality has been strongly compromised. Patents are concentrated in the hands of big companies and privileged individuals. Women and minorities – as well as firms they own – are less likely to file for patents and have their patents granted. Small companies are also less likely to file and receive patents than strong incumbents. This chapter argues that some changes in the patent system can trigger better accessibility, affordability, and equality. It builds on the author’s earlier proposal to replace the patent record with a decentralized database that would include more information about inventions from more sources and additional functions. Under the proposal, inventors would submit patent applications to a shared patent record instead of a central patent office. During the examination process and throughout the duration of the patent, industry and state actors would be able to update the record. For example, third parties could submit prior art, scientists could weigh in on obviousness, patentees could offer licenses, and courts could list outstanding cases that pertain to the patent.

This chapter proposes resurrecting the best mode requirement of patentability and potentially extending disclosure obligations for a finite period of time after patent filing. It further argues that government agencies can leverage public research and procurement funds to promote greater technical disclosure by private innovators. Such measures can increase the disclosure of latent knowledge and codified trade secrets. However, transferring purely tacit knowledge, which is not amenable to codification, often requires direct interaction between technology generators and adopters. This chapter cautions against requiring such intensive tacit knowledge transfer as part of the patent quid pro quo. However, it suggests leveraging public investment in private innovation and building knowledge-sharing infrastructure to facilitate such transfer.

Chapter 1 chronicles how the distractibility of a king, the agency of objects, the desires that cloud judgment, and the memories that haunt the present shape events perhaps even more than ideology. Prior to the restoration of the monarchy in 1660, the Duke of Newcastle proposed returning to a Caroline-style theatrical marketplace, but he was outmaneuvered by courtier-playwrights long accustomed to deploying networks of access. Contingency also determined outcomes. The particular circumstances of Charles II’s upbringing certainly benefited William Davenant and Thomas Killigrew, the two successful patentees. Unlike his royal predecessors, the new monarch regarded the commercial theatre as a gift to be bestowed upon persistent clients who would enjoy monopolistic control going forward. No one foresaw, of course, the economic repercussions of that gift, namely, how the transformation of the theatre from a purely commercial to a hybrid enterprise would require substantial support beyond the box office. Additionally, the duopoly so sought by Killigrew and Davenant exerted its own unexpected agencies. As the following chapters explore, its resulting economic and cultural logic galvanized a host of decisions about repertories and performance practices that would prove both innovative and ruinous.

This chapter begins by outlining the dematerialisation of subject matter that has occurred over the last two decades or so and the problems that this has created for the law. I then explain the aims of the book, namely to look at three situations where patent law has already dealt with a dematerialised subject matter and the role that science and technology played in helping the law to accommodate that subject matter. I end by explaining the particular way that I approach subject matter in the book.

How do you read a patent and what subject matter is patentable? What is the purpose of a patent? Who is an inventor on the patent if work is done by many people on the project? What is the process of obtaining a patent in my country and globally? Read this chapter to see how you could lose commercialization rights to your own invention. When exactly does an invention or idea become patentable? Once you own a patent, how can you make money from it? What is the process of licensing and the key terms that should be negotiated in such a license agreement? What is the use of a copyright or a trade secret in biotech? What exactly constitutes patent infringement ? These questions and many others are addressed in this chapter on intellectual property.

Design patents protect the way a product looks whereas utility patents protect the way a product is used. The law suggests a great disparity between the artistic creation relevant to design patents and the scientific creation relevant to utility patents. The design process is believed to be so personal and subjective that judges refuse to consider any part of a design more important than another. This stands in sharp contrast to the law’s assumptions about scientific invention, which permits objective and focused evaluation of the invention and its prior art. This art/science double standard does not jibe with evidence that the same neural phenomena are at work in all kinds of creative tasks. For scientists as well as designers, both sides of the brain must be engaged in the same process: coming up with an idea, then building on that idea so that it is useful. To earn design patent protection, a claimed design must be “nonobvious” to “the ordinary designer.” To the extent judges refuse to rigorously compare claimed designs against earlier works to determine nonobviousness, they are straying from the way designers actually generate innovative design.

The Introduction sets out the central premise of the book: a sea change in our understanding of the human brain has deep, unexamined implications for intellectual property law. The Introduction begins to build the case for this argument by providing a brief description of the techniques used to detect the biological mechanisms attendant to different thought processes. It connects these techniques to the relevant actors whose perspectives structure the book’s three main parts: artists, audiences, and judges. Neuroscientific lessons for intellectual property law should be approached with a mixture of hope and caution. The hope comes from replacing some of the mistaken hunches about artists and audiences that have shaped intellectual property law for decades. The caution comes from a need to avoid junk science and neuroscientific theories that could do damage to the underlying aims of copyright, patent, and trademark law.

Design patents are meant to promote designs that are “pleasing,” “attractive,” and “beautiful.” Yet judges fret that they will inject their own prejudices into such aesthetic determinations and have adopted a permissive nonobviousness standard that only rejects designs when they are exact copies of what came before. Neuroscience sheds light on the mechanics of design perception and appreciation. Visual processing is arguably the best understood mental process in modern neuroscience. Recent studies show that aesthetic preference is strongly tied to the ease with which an observer can mentally process a particular design. Although a limited amount of innovation may be needed to gain the observer’s attention, consumers insist on simplicity, familiarity, and congruence in designs. Rather than correlating with what an audience considers pleasing, innovation in design, after rapidly reaching an optimal level, begins to trigger aesthetic distaste. I use a variety of examples from popular products and actual cases—like Herman Miller’s Aeron chair and Lego blocks—to illustrate this audience preference for designs in the “aesthetic middle.”

Chapter 14 covers legal issues arising in the context of academic research and technology transfer. A brief history of university technology development and the Bayh-Dole Act of 1980 are given, followed by a discussion of various issues that have arisen under the Act. The Act’s effect on ownership of IP is discussed with reference to Stanford v. Roche (2011). Its requirements for royalty sharing and US manufacturing are discussed. The area of march-in rights is illustrated through the dispute over Fabryzyme. Next focus shifts to the role of university technology transfer offices (TTOs) and ways that universities have attempted to shape university technology transfer over the years, including through the 2007 Nine Points document and the highlighting of issues such as reserved rights, limits on exclusivity, socially-responsible licensing and price controls. Next, other forms of university technology development agreement are discussed, including sponsored research and materials transfer agreements. The chapter concludes with a discussion of university policies relating to copyright.

Chapter 2 covers issues surrounding the assignment of IP (i.e., fixing its ownership as a prerequisite to transacting in it), and contrasts ownership with licensing of IP. It specifically covers the assignment of rights in patents, copyrights, trademarks and trade secrets, including within the employment context (i.e., shop rights , individuals hired to invent and works made for hire). The Supreme Court decision in Stanford v. Roche is considered at length. The chapter concludes with a thorough discussion of the issues presented by joint ownership of IP.

Chapter 4 addresses a range of legal mechanisms by which IP licenses are implied either in fact or in law, notwithstanding the requirements of the Statute of Frauds. Specific cases cover pitches and idea submissions in industries such as toy design and creative works (Nadel v. Play by Play and Wrench v. Taco Bell), commissioned works (IAE v. Shaver), and implied licenses arising from conduct (McCoy v. Mitsuboshi Cutlery).

This chapter describes how device makers try to leverage intellectual property (IP) rights to restrict repair and why those assertions are, as a general rule, inconsistent with a proper understanding of the law. IP—in the form of copyrights, patents, trademarks, and trade secrets—offers manufacturers an arsenal of weapons in the war on repair. From a practical perspective, IP law allows firms to credibly threaten to enjoin, silence, and ultimately bankrupt anyone with the audacity to repair a product without permission. That’s true despite the fact that IP claims against consumers and repair providers rest on questionable legal foundations.