Patent law in comparative context: Differences and similarities of patent law in the European Union, the United States and China
Published date | 01 June 2023 |
DOI | http://doi.org/10.1177/1023263X231206007 |
Author | Päivi Hutukka |
Date | 01 June 2023 |
Patent law in comparative
context: Differences and
similarities of patent law
in the European Union,
the United States and China
Päivi Hutukka *
,
**
Abstract
This study presents the main features of patent law in the European Union, the United States and
China, with a special focus on patentability. Each patent regime is reviewed in its historical con-
text, exploring the stages leading to the given jurisdiction’s contemporary patent law. After map-
ping the differences and similarities of patent law in the EU, the US and China, possible reasons for
the detected divergence and convergence will be explored. This study reveals that the differences
in codified patent law between the EU, the US, and China are for the most part a matter of nuance
and much of the convergence stems from international harmonization efforts and common histor-
ical roots as well as external pressure to convergence in patent law for mainly economic reasons.
Whereas patent laws in the EU and US are more established, China’s patent law has been moulded
into its contemporary form only recently. Differences across the chosen jurisdictions are
explained not only by cultural factors but also by underlying theoretical differences in patent doc-
trine and differing aims of patent protection, as well as the divide concerning the role of statutory
law and case law between the common law and Romano-Germanic law.
Keywords
Patent law, comparative patent law, EU patent law, US patent law, Chinese patent law
*
Faculty of Law, University of Helsinki, Helsinki, Finland
**
Department of Management and Organisation, Hanken School of Economics, Helsinki, Finland
Corresponding author:
Päivi Hutukka, Faculty of Law, University of Helsinki; Department of Management and Organisation, Hanken School of
Economics.
Email: paivi.hutukka@helsinki.fi
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(3) 273–311
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231206007
maastrichtjournal.sagepub.com
1. Introduction
Patents are, alongside trade secret protection, the primary method of protecting and rewarding
inventors.
1
A patent can be defined as an incorporeal statutory negative and prohibitory right to
exclude others, for a limited period, from manufacturing, using or selling a patented product or
patented method or process.
2
Although patents in essence may create a monopoly, the existence
of patent protection provides an incentive for inventors to create useful information and disclose
it since inventors can recover the costs of innovation by having the resulting information being pro-
tected.
3
By solving this aforementioned primary problem, patents promote innovation and provide
benefits to both patentees and society as a whole.
4
It follows that regardless of jurisdiction, patent
laws generally attempt to cater to two competing goals: the private rights of inventors in the form of
claims for recognition and economic advantages, as well as the public’s interest in promoting eco-
nomic development and encouraging invention while allowing consumers to enjoy goods.
5
The purpose of this study is to explore patent law in a comparative context. More specifically, I
will juxtapose the legislative framework of patent law in the European Union (EU), the United
States (US) and the People’s Republic of China (China). The guiding research question of this
study is then: ‘To what extent do patent law in the European Union, the United States and China
resemble each other and to what extent do they differ?’In addition to detecting differences and simi-
larities concerning patent law between these jurisdictions, I aim to address the following research
question: ‘What possible factors explain similarities and differences in patent law in the European
Union, the United States and China?’Whereas the first research question mainly focuses on what
the differences and similarities are, the second research question is about why, specifically, which
reasons might explain the findings of the first research question. With such a formulation of the
research questions, the questions act in a symbiotic relationship, complementing one another like
pieces of a puzzle.
Previous studies scrutinizing patent law in a comparative context have remained scarce, espe-
cially studies comparing patent law as a field of law across multiple jurisdictions. Wong and
Mahalatchimy compared stem cell patents in Europe, United States, China and Japan.
6
Although
their comparative study offers insight into the patentable subject matter of human stem cell-based
inventions across these four patent areas, Wong and Mahalatchimy’s descriptive study lacks a
deeper explanatory analysis of the reasons underlying the detected differences and similarities.
1. K.W. Dam, ‘The Economic Underpinnings of Patent Law’,23The Journal of Legal Studies (1994), p. 247.
2. D. Bouchoux, Intellectual Property: The Law of Trademarks, Copyrights, Patents, and Trade Secrets (4th edition,
Cengage Learning, 2012), p. 5.
3. K.W. Dam, 23 The Journal of Legal Studies (1994), p. 248.
4. This generally accepted notion has been questioned by historical evidence suggesting that patent policies, which grant
strong intellectual property rights to early generations of inventors, may in fact discourage innovation. On the contrary,
policies promoting diffusion of innovation and patent laws that facilitate entry and encourage competition may be effect-
ive mechanisms to encourage innovation; see P. Moser, ‘Patents and Innovation: Evidence from Economic History’,27
Journal of Economic Perspectives (2013), p. 40.
5. UN Doc. E/3861 (1964), 10. These two overarching goals can be broken down into more specific goals. For example, in
the EU, the protection of intellectual property should not hamper freedom of expression, the free movement of information
or the protection of personal data, including on the internet (Preamble, Recital 2 of Directive 2004/4g/EC of the European
Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights,OJ L 157, 30/04/2004,
p. 45–86).
6. A. Wong and A. Mahalatchimy, ‘Human Stem Cells Patents –Emerging Issues and Challenges in Europe, United States,
China, and Japan’,21Journal of World Intellectual Property (2018), p. 326.
274 Maastricht Journal of European and Comparative Law 30(3)
Gulati and Gulati juxtaposed requirements for patentability in European, US and Indian patent law.
7
Although Gulati and Gulati’s study offers insight into the differences and similarities of the required
skill level of a person skilled in art in the context of patentability, akin to Wong and Mahalatchimy’s
study, the analysis of the reasons underlying the differences and similarities is for the most part non-
existent or cursory. Other notable contributions within comparative IP law studies include Kotabe’s
comparative study of US and Japanese patent systems, Sorell’s study of selected aspects of patent
law in China and the United States, as well as Cotter’s analysis of patent remedies in multiple patent
areas.
8
Despite their contributions to comparative IP law studies, and more specifically, compara-
tive patent law, these studies are more steered towards the description of differences and similarities
as opposed to explicating the differences and similarities. In contrast to these earlier studies, this
study sheds light on previously unanswered questions by drawing conclusions about similarities
and differences between patent law in the EU, the US and China. The main academic contributions
of this study include not only systematizing the commonalities and differences of patent law in the
EU, the US and China but also a compilation of a pool of possible explanatory factors at play. In so
doing, this study addresses recent calls within comparative law to conduct more interdisciplinary
comparative law, drawing on non-legal fields of knowledge.
9
This study reveals that the differences in codified patent law, ‘law in books’, between the EU, the
US and China are for the most part a matter of nuance and that similarities in the structure and
wording of patent laws are more prevalent.
10
Whereas European and US patent laws are more estab-
lished, China’s patent law has been moulded into its contemporary form only recently. I find that
much of this convergence in patent law is attributable to international harmonization efforts and
common historical roots, while differences are explained, among others, by underlying theoretical
differences in patent doctrine and differing aims of patent protection, as well as the divide concern-
ing the role of statutory law and case law between the common law and Romano-Germanic law.
Methodological and theoretical freedom inherent in comparative law enable seeking answers to
the research questions of this study with a customized approach while adhering to the basic
approach of comparative legal method as described by the pioneering comparatist Schlesinger,
that is, identifying similarities and differences and attempting to explain reasons for the found
7. N. Gulati and J. Gulati, ‘Knowledge/Skill Standards of a “Person Skilled in Art”: A Concern Less Visited’,17John
Marshall Review of Intellectual Property Law (2018), p. 589. In their comparative study, Indian patent law was not
given equal weight compared to US and European patent law. In contrast, this study aims at scrutinizing all three
chosen jurisdictions giving each an equal amount of attention.
8. M. Kotabe, ‘A Comparative Study of U.S. and Japanese Patent Systems’,23Journal of International Business Studies
(1992), p. 147; L.S. Sorell, ‘A Comparative Analysis of Selected Aspects of Patent Law in China and the United States’,
11 Washington International Law Journal (2002), p. 319; T.F. Cotter, Comparative Patent Remedies: A Legal and
Economic Analysis (Oxford University Press, 2013).
9. Husa asserted over 20 years ago that comparative law needs to draw on the knowledge pool of other disciplines (J. Husa,
‘Classification of Legal Families Today: Is it Time for a Memorial Hymn?’,56Revue Internationale de Droit Comparé
(2004), p. 37–38. More recently, Husa has continued to call for more interdisciplinarity in comparative law, see J. Husa,
Interdisciplinary Comparative Law (Edward Elgar, 2022), p. 231.
10. This conclusion is based on comparing patent law as it has been enacted (’black letter’law) rather than how patent law is
carried out in legal reality, that is, matters such as enforcement and thresholds to patent litigation. For an analysis of the
role that legal culture and judges play in determining the stringency of patent protection and enforcement in the EU, see
M. Norrgård, ‘The Role Conferred on the National Judge by Directive 2004/48/EC on the Enforcement of Intellectual
Property Rights’,6ERA-Forum (2005), p. 503.
Hutukka 275
To continue reading
Request your trial