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Text of China’s Amended Patent Law

Per the “Decision of the Standing Committee of the National People’s Congress on Amending the ‘Patent Law of the People’s Republic of China’” (全国人民代表大会常务委员会关于修改〈中华人民共和国专利法〉的决定), the China’s National People’s Congress has decided to amend China’s Patent Law.  The amendments will go into effect June 1, 2021.  The amendments increase damages, extend design patent term, and introduce both patent term extension and adjustments among other changes.  An unofficial translation of the Patent Law follows with changes indicated by strike though and underline.

Patent Law of the People’s Republic of China (third revised edition in 2008)

Patent Law of the People’s Republic of China (fourth revised edition in 2020)

Chapter 1 General

Chapter 1 General

Article 1  In order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development, this law is formulated.

 

Article 2  The “invention-creation” mentioned in this Law refers to inventions, utility models and designs.

 

Inventions refer to new technical solutions proposed for products, methods or improvements.

 

Utility model refers to a new technical solution suitable for practical use proposed for the shape, structure or combination of the product.

 

Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of products, and the combination of color, shape, and pattern.

Article 2  The “invention-creation” mentioned in this Law refers to inventions, utility models and designs.

 

Inventions refer to new technical solutions proposed for products, methods or improvements.

 

Utility model refers to a new technical solution suitable for practical use proposed for the shape, structure or combination of the product.

 

Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the overall or partial shape, pattern, or combination of the product , and the combination of color, shape, and pattern.

Article 3 The  Patent Administration Department of the State Council shall be responsible for the administration of patent work throughout the country; uniformly accept and review patent applications, and grant patent rights in accordance with the law.

The patent administration departments of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government are responsible for patent administration in their respective administrative regions.

 

Article 4  Where an invention-creation for which a patent is applied for involves national security or a major interest needs to be kept secret, it shall be handled in accordance with relevant national regulations.

 

Article 5  Patent rights shall not be granted for inventions and creations that violate the law, social ethics, or interfere with public interests.

No patent shall be granted for inventions and creations that violate the provisions of laws and administrative regulations to obtain or use genetic resources and rely on such genetic resources.

 

Article 6  Inventions and creations completed by performing the tasks of the unit or mainly using the material and technical conditions of the unit are service inventions. The right to apply for a patent for a service invention-creation belongs to the entity; after the application is approved, the entity is the patentee.

 

For non-service inventions, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer is the patentee.

 

For inventions and creations made using the material and technical conditions of the entity, if the entity has a contract with the inventor or designer to agree on the right to apply for a patent and the ownership of the patent, the agreement shall prevail.

Article 6  Inventions and creations completed by performing the tasks of the unit or mainly using the material and technical conditions of the unit are service inventions. The right to apply for a patent for a service invention-creation belongs to the entity. After the application is approved, the entity is the patentee. The unit can handle the right to apply for patents and patent rights for its service invention-creations in accordance with the law, and promote the implementation and use of related invention-creations.

 

For non-service inventions, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer is the patentee.

 

For inventions and creations made using the material and technical conditions of the entity, if the entity has a contract with the inventor or designer to agree on the right to apply for a patent and the ownership of the patent, the agreement shall prevail.

Article 7  No unit or individual may suppress the non-service invention-creation patent application of the inventor or designer.

 

Article 8: For  an invention-creation completed by two or more entities or individuals, or an invention-creation completed by one entity or individual entrusted by another entity or individual, unless otherwise agreed, the right to apply for a patent belongs to the entity that completed or jointly completed or Individual: After the application is approved, the unit or individual applying is the patentee.

 

Article 9  Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention on the same day, the utility model patent right obtained first has not expired, and the applicant declares abandoning the utility model patent right, the invention patent right may be granted.

If two or more applicants apply for a patent for the same invention-creation separately, the patent right shall be granted to the person who applied first.

 

Article 10 The  right to apply for a patent and the patent right may be assigned.

Where a Chinese entity or individual transfers a patent application right or patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with the relevant laws and administrative regulations.

Where the right to apply for a patent or a patent right is assigned, the parties concerned shall conclude a written contract and register with the patent administration department of the State Council, which shall be announced by the patent administration department of the State Council. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration.

 

Article 11  After the patent right for inventions and utility models is granted, except as otherwise provided in this law, no unit or individual may exploit the patent without the permission of the patentee, that is, not make, use, or use for production and business purposes. Promise to sell, sell, or import its patented products, or use its patented methods and use, promise to sell, sell, or import products directly obtained in accordance with the patented methods.

After the design patent right is granted, no unit or individual shall exploit the patent without the permission of the patentee, that is, shall not manufacture, promise to sell, sell, or import its design patent products for production and business purposes.

 

Article 12  Any entity or individual who exploits the patent of another person shall conclude an exploitation license contract with the patentee and pay the patentee royalties. The licensee has no right to allow any unit or individual outside the contract to exploit the patent.

 

Article 13  After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

 

Article 14 Where  the invention patents of state-owned enterprises and institutions are of great significance to the national interest or public interest, the relevant competent departments of the State Council and the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may, after reporting to the State Council for approval, decide to promote and apply them within the approved scope. The designated unit is allowed to implement it, and the implementing unit shall pay royalties to the patentee in accordance with national regulations.

(Moved to Article 49)

Article 15 If the  patent application right or the co-owners of the patent right have an agreement on the exercise of the right, such agreement shall prevail. If there is no agreement, the co-owners may independently implement the patent or license others to implement the patent by way of ordinary license; if the patent is granted to others, the royalties collected shall be distributed among the co-owners.

Except for the circumstances specified in the preceding paragraph, the exercise of joint patent application rights or patent rights shall obtain the consent of all co-owners.

 

Article 16  The unit that has been granted patent rights shall reward the inventor or designer of a service invention-creation; after the implementation of the invention-creation patent, the inventor or designer shall be granted reasonable compensation based on the scope of its promotion and application and the economic benefits obtained. 

Renumbered Article 15 The unit that has been granted patent rights shall reward the inventor or designer of a service invention-creation; after the implementation of the invention-creation patent, the inventor or designer shall be granted reasonable compensation based on the scope of its promotion and application and the economic benefits obtained. 

 

The state encourages units granted patent rights to implement property rights incentives, adopting methods such as stock rights, options, and dividends, so that inventors or designers can reasonably share the benefits of innovation.

Article 17 The  inventor or designer has the right to state that he is the inventor or designer in the patent document.

The patentee has the right to mark the patent mark on the patented product or the packaging of the product.

 

Article 18  Foreigners, foreign enterprises or other foreign organizations that do not have a habitual residence or place of business in China apply for patents in China in accordance with the agreement signed with China or the international treaty jointly signed by their country of origin, or the principle of This law applies.

 

Article 19  Foreigners, foreign enterprises or other foreign organizations that do not have a habitual residence or business office in China shall entrust a patent agency established according to law to apply for patents and handle other patent affairs in China.

Where a Chinese entity or individual applies for patents and handles other patent affairs in China, it may entrust a patent agency established in accordance with the law to handle it.

Patent agencies shall abide by laws and administrative regulations and handle patent applications or other patent affairs in accordance with the entrustment of the attorney; the contents of the invention and creation shall be kept confidential except for the patent application that has been published or announced. The specific management measures of patent agencies shall be formulated by the State Council.

 
 

New Article 20

Applying for patents and exercising patent rights shall follow the principle of good faith. The patent rights shall not be abused to harm public interests or the legitimate rights and interests of others.

Any misuse of patent rights, elimination or restriction of competition, which constitutes monopolistic behavior, shall be dealt with in accordance with the Anti-Monopoly Law of the People’s Republic of China.

Article 21 The  Patent Administration Department of the State Council and its Patent Reexamination Board shall process relevant patent applications and requests in accordance with the requirements of objectivity, fairness, accuracy and timeliness.

 

The patent administration department of the State Council shall publish patent information in a complete, accurate and timely manner, and publish patent bulletins regularly.

Before the publication or announcement of the patent application, the staff of the Patent Administration Department of the State Council and related personnel shall be responsible for keeping the content confidential.

Article 21 The  Patent Administration Department of the State Council and its Patent Reexamination Board shall process relevant patent applications and requests in accordance with the requirements of objectivity, fairness, accuracy and timeliness.

 

The Patent Administration Department of the State Council shall strengthen the construction of a patent information public service system, publish patent information in a complete, accurate and timely manner, provide basic patent data, publish patent bulletins regularly, and promote the dissemination and utilization of patent information.

 

Before the publication or announcement of the patent application, the staff of the Patent Administration Department of the State Council and related personnel shall be responsible for keeping the content confidential.

Chapter II Conditions for Granting Patent Rights

Chapter II Conditions for Granting Patent Rights

Article 22  Inventions and utility models granted patent rights shall possess novelty, creativity and practicality.

Novelty means that the invention or utility model does not belong to the prior art; no unit or individual has filed an application for the same invention or utility model with the Patent Administration Department of the State Council before the filing date, and it is recorded after the filing date. Patent application documents or published patent documents.

Creativity means that compared with the prior art, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress.

Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.

The “existing technology” mentioned in this law refers to the technology known to the public at home and abroad before the filing date.

 

Article 23 A design for which the patent right is granted is not an existing design, and no application is filed by any unit or individual for any identical design with the patent administration department under the State Council before the date of application for patent right and no identical design is recorded in the patent documentations announced after the date of application.

Compared with the existing design or the combination of existing design features, the design for which the patent right is granted should be clearly different.

The design for which the patent is granted shall not conflict with the legal rights acquired by others before the filing date.

The “existing design” mentioned in this law refers to the design known to the public at home and abroad before the filing date.

 

Article 24  The invention-creation for which a patent is applied for shall not lose its novelty in any of the following circumstances within six months before the filing date:

 

(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government;

(2) It is published for the first time at a prescribed academic conference or technical conference;

(3) Others divulge the content without the consent of the applicant.

Article 24  The invention-creation for which a patent is applied for shall not lose its novelty in any of the following circumstances within six months before the filing date:

 

( 1) It is made public for the first time for the purpose of public interest when a state of emergency or an extraordinary situation occurs in the country;

(2) It was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government;

(3) Published for the first time at a prescribed academic conference or technical conference;

(4) Others disclose the content without the consent of the applicant.

Article 25  No patent rights shall be granted to the following items:

(1) Scientific discoveries;

(2) Rules and methods of intellectual activities;

(3) Methods of diagnosis and treatment of diseases;

(4) Animal and plant varieties;

(5) Substances obtained by nuclear transformation methods;

(6) Designs that are mainly used for marking the patterns, colors, or a combination of the two of two prints.

The production methods of the products listed in item (4) of the preceding paragraph may be granted patent rights in accordance with the provisions of this Law.

Article 25  No patent rights shall be granted to the following items:

(1) Scientific discoveries;

(2) Rules and methods of intellectual activities;

(3) Methods of diagnosis and treatment of diseases;

(4) Animal and plant varieties;

(5) Nuclear transformation methods and substances obtained by nuclear transformation methods.

(6) Designs that are mainly used for marking the patterns, colors, or a combination of the two prints.

The production methods of the products listed in item (4) of the preceding paragraph may be granted patent rights in accordance with the provisions of this Law.

Chapter III Patent Application

Chapter III Patent Application

Article 26 Anyone who  applies for a patent for invention or utility model shall submit a request, description and its abstract, claims and other documents.

The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters.

The specification shall provide a clear and complete description of the invention or utility model, and shall be subject to the realization of the technical personnel in the relevant technical field; when necessary, there shall be drawings. The abstract should briefly describe the technical points of the invention or utility model.

The claims should be based on the description, clearly and concisely limiting the scope of patent protection.

For inventions and creations that rely on genetic resources, the applicant shall state the direct source and original source of the genetic resources in the patent application documents; if the applicant is unable to state the original source, it shall state the reasons.

 

Article 27 To  apply for a design patent, documents such as a request, pictures or photos of the design and a brief description of the design shall be submitted.

The relevant pictures or photos submitted by the applicant should clearly show the design of the product that requires patent protection.

 

Article 28 The  date when the patent administration department of the State Council receives the patent application documents shall be the application date. If the application documents are mailed, the postmark date shall be the application date.

 

Article 29 The  applicant shall within twelve months from the date when the invention or utility model is filed for the first time in a foreign country, or within six months from the date when the design is filed for the first time in a foreign country, and where a patent application on the same subject is filed in China, the right of priority may be enjoyed in accordance with the agreement signed between the foreign country and China or the international treaty jointly participated in, or in accordance with the principle of mutual recognition of priority.

 

Applicants who file a patent application on the same subject with the patent administration department of the State Council within twelve months from the date when the invention or utility model first filed a patent application in China may enjoy priority.

Article 29 The  applicant shall within twelve months from the date when the invention or utility model is filed for the first time in a foreign country, or within six months from the date when the design is filed for the first time in a foreign country, and where a patent application on the same subject is filed in China, the right of priority may be enjoyed in accordance with the agreement signed between the foreign country and China or the international treaty jointly participated in, or in accordance with the principle of mutual recognition of priority.

 

Within twelve months from the date of filing the first patent application for invention or utility model in China, or within six months from the date of filing the first patent application for a design in China, the applicant shall apply to the Patent Administration Department of the State Council Those who file a patent application on the same subject may enjoy priority.

Article 30 Where an applicant claims priority, it shall submit a written declaration at the time of application and submit a copy of the first patent application document within three months; fail to submit a written declaration or fail to submit a copy of the patent application document within three months Is deemed to have not claimed priority.

Article 30  Where an applicant claims priority for a patent for invention or utility model, it shall submit a written statement at the time of application, and within 3 months 16 months from the date of filing the first application for a patent for invention or utility model, submit the first copy of the patent application documents

If the applicant claims priority for a design patent, he shall submit a written statement at the time of application and submit a copy of the first patent application file within three months.

If the applicant fails to submit a written statement or fails to submit a copy of the patent application document within the time limit, it shall be deemed that the right of priority has not been claimed.

Article 31  An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models that belong to a general inventive concept may be filed as one application.

An application for a design patent shall be limited to one design. Two or more similar designs for the same product, or two or more designs for products that are used in the same category and sold or used in sets, may be filed as one application.

 

Article 32 The  applicant may withdraw his patent application at any time before the patent right is granted.

 

Article 33  Applicants may amend their patent application documents, but the amendments to the invention and utility model patent application documents shall not exceed the scope of the original specification and claims, and the amendments to the design patent application documents shall not exceed The range indicated by the original image or photo.

 

Chapter IV Examination and Approval of Patent Applications

 

Article 34:  After receiving an application for a patent for invention , the patent administration department of the State Council finds that it meets the requirements of this law through preliminary examination, and it shall be announced immediately after the expiration of 18 months from the date of application. The Patent Administration Department of the State Council may announce the application as soon as possible at the request of the applicant.

 

Article 35  Within three years from the date of filing an application for a patent for invention, the Patent Administration Department of the State Council may conduct a substantive examination of the application according to the request submitted by the applicant at any time; if the applicant does not request a substantive examination within the time limit without proper reason, the application shall be Is considered withdrawn.

The patent administration department of the State Council may conduct substantive examination of the invention patent application when it deems it necessary.

 

Article 36 When  an applicant for an invention patent requests substantive examination, it shall submit reference materials related to his invention before the application date.

Where an application for a patent for invention has been filed in a foreign country, the Patent Administration Department of the State Council may require the applicant to submit the materials searched for the country’s application or the results of the examination within a specified time limit; if the application is not submitted within the specified time limit, the application shall be Is considered withdrawn.

 

Article  37. After the patent administration department of the State Council has conducted substantive examination of an invention patent application, if it finds that it does not conform to the provisions of this law, it shall notify the applicant and require him to state his opinions within the specified time limit or to amend his application; If the response is not provided within the time limit, the application shall be deemed to have been withdrawn.

 

Article 38  After the applicant’s opinions or amendments have been made to an application for a patent for invention, if the Patent Administration Department of the State Council still believes that it does not comply with the provisions of this Law, it shall be rejected.

 

Article 39 If  no reason for rejection of an application for a patent for invention is found through substantive examination, the patent administration department under the State Council shall make a decision to grant the patent right for the invention, issue an invention patent certificate, and register and announce it at the same time. The patent right for invention shall take effect from the date of announcement.

 

Article 40: If the  application for a utility model or design patent is not found to be rejected after the preliminary examination, the Patent Administration Department of the State Council shall make a decision to grant a utility model patent or a design patent, and issue the corresponding patent certificate, and simultaneously register and announcement. Utility model patent rights and design patent rights shall become effective on the date of announcement.

 

Article 41 The  Patent Administration Department of the State Council shall establish a Patent Reexamination Board. If the patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject the application, it may request a reexamination from the Patent Reexamination Board within three months from the date of receipt of the notification. After reexamination, the Patent Reexamination Board will make a decision and notify the patent applicant.

 

If a patent applicant is dissatisfied with the reexamination decision of the Patent Reexamination Board, he may file a suit in a people’s court within three months from the date of receipt of the notice.

Article 41 The  Patent Administration Department of the State Council shall establish a Patent Reexamination Board. If a patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject the application, it may request a reexamination from the Patent Reexamination Board of the Patent Administration Department of the State Council within three months from the date of receipt of the notification. The Patent Reexamination Board After reexamination, the Patent Administration Department of the State Council shall make a decision  and notify the patent applicant.

 

If a patent applicant is dissatisfied with the reexamination decision of the Patent Reexamination Board Patent Administration Department of the State Council , he may file a suit in a people’s court within three months from the date of receipt of the notification.

Chapter V Term, Termination and Invalidation of Patent Right

Chapter V Term, Termination and Invalidation of Patent Right

Article 42  The term of patent right for invention is 20 years, and the term of patent right for utility model and design patent is 10 years, both calculated from the date of filing.

Article 42  The term of invention patent right is 20 years, the term of utility model patent right and design patent right is 10 years, and the term of design patent right is 15 years, all counted from the date of filing.

 

Where four years have passed since the application date of the invention patent and the patent right for the invention has been granted three years after the date of the request for substantive examination, the patentee may request compensation for the unreasonable delay in the granting process of the invention patent, but the validity period of the patent shall not be extended for unreasonable delay caused by the applicant.

 

In order to compensate for the time taken for the review and marketing approval of the a drug , the patent administration department of the State Council may, at the request of the patentee, grant compensation for a period of time for new drug invention patents that have been approved for marketing in China. The compensation period shall not exceed five years, and the total effective patent right period after the new drug is marketed shall not exceed 14 years.

Article 43 The  patentee shall pay the annual fee from the year in which the patent right is granted.

 

Article 44 In  any of the following circumstances, the patent right shall be terminated before the expiration of the time limit:

(1) Failure to pay annual fees in accordance with regulations;

(2) The patentee waives his patent right in a written statement.

If the patent right is terminated before the expiry of the term, it shall be registered and announced by the Patent Administration Department of the State Council.

 

Article 45  From the date when the Patent Administration Department of the State Council announces the grant of the patent right, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this law may request the Patent Reexamination Board to declare the patent right invalid.

Article 45  From the date when the patent administration department of the State Council announces the grant of the patent right, any unit or individual who believes that the grant of the patent right does not comply with the relevant provisions of this law may request the Patent Reexamination Board and the State Council Patent Administration Department to declare the patent right invalid .

Article 46 The  Patent Reexamination Board shall promptly review and make a decision on a request for invalidation of a patent right, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.

 

Anyone who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a suit in a people’s court within three months from the date of receipt of the notice. The people’s court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.

Article 46: The  Patent Reexamination Board and the Patent Administration Department of the State Council shall promptly review and make a decision on a request for invalidation of a patent right, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.

 

Anyone who is dissatisfied with the decision of the Patent Reexamination Board of the Patent Administration Department of the State Council to declare the patent right invalid or maintain the patent right may file a suit in the people’s court within three months from the date of receipt of the notification. The people’s court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.

 Article 47

Any patent right that has been declared invalid shall be deemed to be non-existent
from the beginning.
The decision on declaring a patent right invalid shall have no retroactive effect on any written
judgment or written mediation on patent infringement that has been made and enforced by the
people’s court, or on any decision concerning the handling of a dispute over the patent infringement
that has been performed or compulsively executed, or on any contract for permitted exploitation of the
patent or for transfer of patent rights that has been performed–prior to the invalidation declaration of the patent right. However, compensation shall be made for the losses caused to another person mala
fides by the patentee.
Where the patent infringement compensation, royalties, and patent right transfer fees are not refunded pursuant to the provisions of the preceding paragraph, which constitutes a blatant violation
of the principle of fairness, refund shall be made fully or partly.

 

Chapter VI Compulsory License for Patent Exploitation

Chapter VI Compulsory Special License for Patent Implementation

 

Article 48 The patent administration department under the State Council and the administrative department of patents of the local people’s government shall, in conjunction with relevant departments at the same level, take measures to strengthen patent public services and promote the implementation and application of patents.

 

Article 49 (previously 14) Where  the invention patents of state-owned enterprises and institutions are of great significance to the national interest or public interest, the relevant competent departments of the State Council and the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may, after reporting to the State Council for approval, decide to promote and apply them within the approved scope. The designated unit is allowed to implement it, and the implementing unit shall pay royalties to the patentee in accordance with national regulations.

 

Article 50 Where the patentee voluntarily declares in writing to the Patent Administration Department of the State Council that he is willing to license any entity or individual to exploit his patent, and specifies the method and standard for payment of license fees, the Patent Administration Department of the State Council shall make an Announcement and implement open licensing.

Where the patentee withdraws the open license statement, it shall be submitted in writing and be announced by the Patent Administration Department of the State Council. If the open permission statement is withdrawn by announcement, the validity of the open permission granted earlier will not be affected.  Where an open licensing statement is made for utility models and design patents, a patent right evaluation report shall be provided.

If the patentee withdraws the open license statement, it shall be filed in writing and announced by the Patent Administration Department of the State Council. If the open license statement is withdrawn by announcement, the validity of the open license granted earlier shall not be affected.

 

Article 51 Any unit or individual who wishes to implement an open-licensed patent shall notify the patentee in writing and pay the license fee in accordance with the announced method and standard for the license fee to then obtain a patent license.

During the implementation period of the open license, the annual patent fee paid by the patentee shall be reduced or exempted accordingly.

The patentee who implements open licensing may grant a general license after negotiating with the licensee on the license fee, but shall not grant an exclusive license for the patent.

 

Article 52 Where the parties have disputes over the implementation of an open license, the parties shall negotiate and resolve them; if they are unwilling to negotiate or the negotiation fails, they may request the Patent Administration Department of the State Council for mediation or bring a lawsuit to the people’s court.

Article 48 In  any of the following circumstances, the Patent Administration Department of the State Council may grant a compulsory license for the exploitation of invention patents or utility model patents based on the application of entities or individuals that meet the requirements for implementation:

(1) The patentee has not implemented or fully implemented his patent for three years since the date of grant of the patent right and four years since the date of filing the patent application;

(2) The patentee’s exercise of the patent right is recognized as a monopolistic behavior in accordance with the law, in order to eliminate or reduce the adverse effects of the behavior on competition.

 

Article 49  In the event of a state of emergency or extraordinary circumstances, or for the purpose of public interest, the Patent Administration Department of the State Council may grant a compulsory license for the exploitation of invention patents or utility model patents.

 

Article 50  For public health purposes, the patent administration department of the State Council may grant compulsory licenses to manufacture and export drugs to countries or regions that comply with the relevant international treaties to which the People’s Republic of China has participated.

 

Article 51  A patented invention or utility model has a major technological advancement that has significant economic significance compared to an invention or utility model that has been previously patented, and its implementation depends on the implementation of the previous invention or utility model, The patent administration department of the State Council may grant a compulsory license to implement the previous invention or utility model based on the application of the latter patentee.

In the case where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department of the State Council may also grant a compulsory license for the exploitation of the latter invention or utility model based on the application of the former patentee.

 

Article 52  Where the invention-creation involved in a compulsory license is semiconductor technology, its implementation is limited to the purpose of public interest and the circumstances specified in Article 48(2) of this Law.

 

Article 53  Except for the compulsory licenses granted in accordance with Article 48(2) and Article 50 of this Law, the implementation of compulsory licenses shall be mainly for supplying the domestic market.

 

Article 54  An entity or individual that applies for a compulsory license in accordance with Article 48 (1) and Article 51 of this Law shall provide evidence to prove that it requests the patentee to grant permission to exploit the patent on reasonable terms. , But failed to obtain permission within a reasonable time.

 

Article 55 The  decision made by the patent administration department of the State Council to grant a compulsory license for exploitation shall be notified to the patentee in a timely manner, and shall be registered and announced.

The decision to grant a compulsory license for implementation shall stipulate the scope and time of implementation based on the reasons for the compulsory license. When the reason for the compulsory license is eliminated and no longer occurs, the patent administration department of the State Council shall, upon the request of the patentee, make a decision to terminate the implementation of the compulsory license after review.

 

Article 56:  Units or individuals that have obtained a compulsory license for enforcement do not have exclusive enforcement rights and have no right to allow others to enforce them.

 

Article 57  The entity or individual that has obtained a compulsory license for exploitation shall pay the patentee reasonable royalties, or deal with the issue of royalties in accordance with the provisions of the relevant international treaties to which the People’s Republic of China is a party. If the royalty is paid, the amount shall be negotiated by both parties; if the two parties cannot reach an agreement, the patent administration department of the State Council shall make a ruling.

 

Article 58:  Where the patentee is dissatisfied with the decision of the patent administration department of the State Council on the implementation of a compulsory license, the patentee and the unit or individual that has obtained the compulsory license for the implementation of the compulsory license is dissatisfied with the ruling of the patent administration department of the State Council on royalties for the implementation of the compulsory license , it can file a suit in a people’s court within three months from the date of receipt of the notice.

 

Chapter VII Protection of Patent Right

Chapter VII Protection of Patent Right

Article 59  The protection scope of the patent right for an invention or utility model shall be subject to the content of the claims. The description and drawings may be used to interpret the content of the claims.

The protection scope of the design patent right is based on the design of the product shown in the picture or photo, and the brief description can be used to explain the design of the product represented by the picture or photo.

 

Article 60:  Where a patent is infringed by the patentee without the permission of the patentee, and a dispute is caused, the parties shall negotiate and resolve the dispute; if they are unwilling to negotiate or the negotiation fails, the patentee or interested parties may file a lawsuit in a people’s court. It can also request the patent administrative department  to deal with it. When the patent administrative department determines that the infringement is established, it can order the infringer to stop the infringement immediately. If the party is dissatisfied, it can legal action before a People’s Court in accordance with the “Administrative Procedure Law of the People’s Republic of China” within 15 days of receiving the notice of processing .If the infringer does not sue and does not stop the infringement at the expiration of the time limit, the administrative patent department may apply to the people’s court for enforcement. At the request of the party concerned, the administrative patent department that handles the work may conduct mediation on the amount of compensation for patent infringement; if the mediation fails, the party may file a lawsuit in a people’s court in accordance with the Civil Procedure Law of the People’s Republic of China.

 

Article 61: Where a  patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that the product manufacturing method is different from the patented method.

If a dispute over patent infringement involves a utility model patent or a design patent, the
people’s court or the administration department for patent-related work may require the patentee or the
interested parties to present a patent right assessment report prepared by the patent administration
department under the State Council through searching, analyzing, and assessing the relevant utility
model or design, which shall serve as evidence for trying or handling the patent infringement dispute.

Renumbered Article 66:  Where a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that the product manufacturing method is different from the patented method.

If a dispute over patent infringement involves a utility model patent or a design patent, the
people’s court or the administration department for patent-related work may require the patentee or the
interested parties to present a patent right assessment report prepared by the patent administration
department under the State Council through searching, analyzing, and assessing the relevant utility
model or design, which shall serve as evidence for trying or handling the patent infringement dispute; special patent rights holder or interested party or the accused infringer can also take the initiative to request a patent evaluation report .

Article 62  In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design implemented by him belongs to the existing technology or the existing design, it does not constitute an infringement of the patent right.

 

Article 63 In case of  counterfeiting patents, in addition to assuming civil liabilities in accordance with the law, the administrative department of patents shall order corrections and make an announcement, confiscate the illegal income, and may also impose a fine of four times the illegal income; if there is no illegal income, it may be imposed A fine of less than 200,000 yuan; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 68 In addition to assuming civil liability in accordance with the law, the department in charge of patent enforcement shall order corrections and make announcements, confiscate the illegal gains, and may impose a fine. If there is no illegal income or the illegal income is less than 50,000 yuan, a fine of less than 250,000 yuan may be imposed; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

Article 64: When the administrative department of patents investigates and deals with suspected patent counterfeiting based on the evidence it has obtained, it may inquire with the relevant parties and investigate the circumstances related to the suspected illegal acts; conduct on-site inspections of the premises where the parties are suspected of illegal acts; Consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; inspect products related to suspected illegal acts, and seal or seize products that have evidence to prove that they are counterfeit patents. 

 

When the administrative department of patents exercises the functions and powers stipulated in the preceding paragraph, the parties shall provide assistance and cooperation, and shall not refuse or obstruct.

Article 69 The administrative department of patents investigates and punishes suspected patent counterfeiting based on the evidence it has obtained, patent enforcement department has the right to take the following measures when investigating and prosecuting the suspected patent counterfeiting based on the evidence it has obtained:

(1) Inquire with the relevant parties and investigating the circumstances related to the suspected illegal acts;

(2) Conduct on-site inspections of the premises where the parties are suspected of illegal acts;

(3) Consult and copy contracts, invoices, account books and other relevant materials related to the suspected illegal act;

(4) Inspect products related to suspected illegal acts;

(5) Seal or seize products that have evidence to prove that they are counterfeit patents.

 

When handling patent infringement disputes at the request of the patentee or interested parties, the administrative department of patents may adopt the measures listed in items (1), (2), and (4) of the preceding paragraph.

 

When the department in charge of patent enforcement and the department in charge of patent work exercise the functions and powers specified in the preceding two paragraphs in accordance with the law, the parties concerned shall provide assistance and cooperation, and shall not refuse or obstruct the departments.

 

Article 70 The patent administration department of the State Council may, at the request of the patentee or interested parties, handle patent infringement disputes that have a significant national impact.

The administrative department of patents of the local people’s government shall handle patent infringement disputes at the request of the patentee or interested parties, and may handle the cases of infringement of the same patent right within the administrative area in a combined manner; for cases of infringement of the same patent right across regions You can request the administrative department of the local people’s government at a higher level to handle the matter.

Article 65 The  amount of damages for patent infringement shall be determined based on the actual loss suffered by the right holder due to the infringement; if the actual loss is difficult to determine, it may be determined based on the interest gained by the infringer due to the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee. The amount of compensation should also include reasonable expenses paid by the right holder to stop the infringement.

 

Where it is difficult to determine the loss of the right holder, the benefits obtained by the infringer, and the patent license fee, the people’s court may determine the amount of more than 10,000 yuan but less than one million yuan based on factors such as the type of patent right, the nature of the infringement and the circumstances. Compensation.

Article 71The  amount of damages for patent infringement shall be determined based on the actual loss suffered by the right holder due to the infringement or gains earned by the infringer through the infringement; if the actual loss or earned gains is difficult to determine, it may be determined based on the interest gained by the infringer due to the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee. The amount of compensation should also include reasonable expenses paid by the right holder to stop the infringement. For intentional infringement of patent rights, if the circumstances are serious, the amount of compensation may be determined at more than one time and less than five times the amount determined according to the above method.

 

Where it is difficult to determine the loss of the right holder, the benefits obtained by the infringer, and the patent license fee, the people’s court may determine the amount of more than 30,000 yuan but less than five million yuan based on factors such as the type of patent right, the nature of the infringement and the circumstances. 

The amount of compensation should also include reasonable expenses paid by the right holder to stop the infringement.

In order to determine the amount of compensation, the people’s court may order the infringer to provide the account books and information related to the infringement when the right holder has tried its best to provide evidence and the account books and information related to the infringement are mainly in the hands of the infringer; the infringer does not provide it or if false accounting books or materials are provided, the people’s court may determine the amount of compensation based on the claims of the right holder and the evidence provided.

Article 66: If the  patentee or interested party has evidence to prove that another person is committing or is about to commit an infringement of the patent right, if it is not stopped in time, it will cause irreparable damage to its legitimate rights and interests, it may appeal to the people before prosecuting The court applied for measures to order the suspension of relevant acts.

 

The applicant shall provide a guarantee when submitting an application; if it does not provide a guarantee, the application shall be rejected.

 

The people’s court shall make a ruling within 48 hours from the time it accepts the application; if there are special circumstances that require an extension, it may extend for forty-eight hours. If the ruling is ordered to stop the relevant behavior, it shall be executed immediately. If the parties are not satisfied with the ruling, they may apply for a reconsideration; the execution of the ruling shall not be suspended during the reconsideration.

 

If the applicant does not file a lawsuit within 15 days from the date when the people’s court takes the measures ordering the cessation of the relevant acts, the people’s court shall lift the measures.

 

If there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the suspension of relevant acts.

Article 72: If the patentee or interested party has evidence to prove that another person is committing or is about to commit an act that infringes the patent right and hinders its realization, if it would cause irreparable damage to their lawful rights and interests it may apply to the people’s court for property preservation, order certain actions, or prohibit certain actions before proceeding.

The applicant shall provide a guarantee when submitting an application; if it does not provide a guarantee, the application shall be rejected.

The people’s court shall make a ruling within 48 hours from the time it accepts the application; if there are special circumstances that require an extension, it may extend for forty-eight hours. If the ruling is ordered to stop the relevant behavior, it shall be executed immediately. If the parties are not satisfied with the ruling, they may apply for a reconsideration; the execution of the ruling shall not be suspended during the reconsideration.

If the applicant does not file a lawsuit within 15 days from the date when the people’s court takes the measures ordering the cessation of the relevant acts, the people’s court shall lift the measures.

If there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the suspension of relevant acts.

Article 67  In order to stop patent infringements, the patentee or interested parties may apply to the people’s court for evidence preservation before the lawsuit is filed when the evidence may be lost or difficult to obtain in the future.

The people’s court may order the applicant to provide a guarantee by adopting preservation measures; if the applicant fails to provide a guarantee, the application shall be rejected.

The people’s court shall make a ruling within 48 hours from the time it accepts the application; if it decides to take preservative measures, it shall be executed immediately.

 

If the applicant does not file a lawsuit within 15 days from the date when the people’s court takes the preservation measures, the people’s court shall lift the measures.

Article 73 In order to stop patent infringements, the patentee or interested parties may apply to the people’s court for evidence preservation before the lawsuit is filed when the evidence may be lost or difficult to obtain in the future

The people’s court may order the applicant to provide a guarantee by adopting preservation measures; if the applicant fails to provide a guarantee, the application shall be rejected.

The people’s court shall make a ruling within 48 hours from the time it accepts the application; if it decides to take preservative measures, it shall be executed immediately.

If the applicant does not file a lawsuit within 15 days from the date when the people’s court takes the preservation measures, the people’s court shall lift the measures.

 

Article 68 The  statute of limitations for infringement of patent rights shall be two years, calculated from the date when the patentee or interested parties learn of or should learn of the infringement.

 

After the publication of the application for a patent for invention to before the grant of the patent right, if the appropriate royalties are not paid for the use of the invention, the statute of limitations for the patentee’s request to pay the royalties is two years, from the date when the patentee learns or should learn that others use the invention However, if the patentee has known or should have known before the date of grant of the patent right, it shall be counted from the date of grant of the patent right.

Article 74The  statute of limitations for infringement of patent rights shall be two three years, calculated from the date when the patentee or interested parties learn of or should learn of the infringement.

After the publication of the application for a patent for invention to before the grant of the patent right, if the appropriate royalties are not paid for the use of the invention, the statute of limitations for the patentee to request the payment of royalties is two years and three years , and the patentee knows or should know that others use the invention However, if the patentee has known or should have known before the date of grant of the patent right, it shall be counted from the date of grant of the patent right.

Article 69 Any of  the following circumstances shall not be regarded as infringement of patent rights:

(1) After a patented product or a product directly obtained in accordance with a patented method is sold by the patentee or a unit or individual authorized by it, the product is used, promised to be sold, sold, or imported;

(2) The same product has been manufactured, the same method is used, or the necessary preparations for manufacturing and use have been made before the patent application date, and the manufacturing and use are only continued within the original scope;

(3) Foreign means of transport temporarily passing through China’s territorial land, territorial waters, and airspace shall, in accordance with the agreement signed by its country of origin and China, or an international treaty jointly participated in, or in accordance with the principle of reciprocity, install and install equipment and equipment for the means of transport itself The use of relevant patents;

(4) Use relevant patents exclusively for scientific research and experiments;

(5) Manufacturing, using, or importing patented drugs or patented medical devices in order to provide information required for administrative examination and approval, and manufacturing or importing patented drugs or patented medical devices for them.

 

Article 70: If  a patent infringing product is used, promised to sell, or sold for production and business purposes that is not known to be manufactured and sold without the permission of the patentee, and the legal origin of the product can be proved, no liability for compensation shall be assumed.

 

Article 71  Anyone who violates the provisions of Article 20 of this Law to apply for a patent in a foreign country and reveals state secrets shall be given administrative sanctions by the unit to which he belongs or the competent authority at a higher level; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

 
 

Article 76 In the  process of review and approval of drug marketing, if a dispute arises between the applicant for drug marketing authorization and the relevant patentee or interested party due to the patent right of the drug applied for registration, the relevant party may file a lawsuit with the people’s court and request Make a judgment on whether the drug-related technical solution applied for registration falls within the scope of protection of the patent right of others’ drugs. The drug regulatory department of the State Council may, within the prescribed time limit, make a decision on whether to suspend the approval of the listing of relevant drugs based on the effective judgment of the people’s court.

    Applicants for drug marketing authorization and relevant patentees or interested parties may also request administrative rulings from the Patent Administration Department of the State Council for disputes over patent rights related to the drugs applied for registration.

    The drug regulatory department of the State Council, in conjunction with the patent administration department of the State Council, shall formulate specific measures for the connection of patent dispute resolution at the stage of drug marketing license approval and drug marketing license application, which shall be implemented after the approval of the State Council.

Article 72 Anyone who  infringes on the inventor or designer’s right to apply for a patent for a non-service invention-creation and other rights and interests prescribed by this Law shall be given administrative sanctions by the unit to which he belongs or the competent authority at a higher level.

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Article 73 The  administrative department of patents shall not participate in business activities such as recommending patented products to the society.

 

If the administrative department of patents violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to make corrections, eliminate the impact, and confiscate illegal income; if the circumstances are serious, the directly responsible person in charge and other directly responsible persons shall be given administrative sanctions according to law .

Article 79 The  administrative department of patents shall not participate in business activities such as recommending patented products to the society.

 

If the administrative department of patents violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to make corrections, eliminate the impact, and confiscate illegal income; if the circumstances are serious, the directly responsible person in charge and other directly responsible persons shall be given administrative sanctions according to law .

Article 74:  Personnel of state organs engaged in patent administration work and other relevant state organs’ staff who neglect their duties, abuse their powers, or engage in malpractice for personal gains and constitute a crime shall be investigated for criminal responsibility according to law; if a crime is not constituted, administrative sanctions shall be imposed according to law.

Article 79:  Personnel of state organs engaged in patent administration work and other relevant state organs’ staff who neglect their duties, abuse their powers, or engage in malpractice for personal gains, which constitute a crime, shall be investigated for criminal responsibility according to law; if a crime is not constituted, administrative sanctions shall be imposed according to law.

Chapter 8 Supplementary Provisions

 

Article 75: To  apply for patents and go through other formalities with the Patent Administration Department of the State Council, fees shall be paid in accordance with regulations.

 

Article 76 This  Law shall go into effect on April 1, 1985.

 
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Author:
Director of China Intellectual Property Practice

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