Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
(Adopted at the 6th Meeting of the Standing Committee of the Eleventh National People's Congress on December 27, 2008)
At its 6th Meeting, the Standing Committee of the Eleventh National People's Congress decided to make the following amendments to the Patent Law of the People's Republic of China:
1. Article 1 is revised to read: "This Law is enacted for the purpose of
protecting the lawful rights and interests of patentees, encouraging
invention-creation, promoting the application of invention-creation, enhancing
innovation capability, promoting the advancement of science and technology and
the economic and social development."
2. Three paragraphs are added in Article 2 as the second, third and forth
paragraph, which read: "Inventions mean new technical solutions proposed for a
product, a process or the improvement thereof.
"Utility models mean new technical solutions proposed for the shape and
structure of a product, or the combination thereof, which are fit for practical
use.
"Designs mean, with respect to a product, new designs of the shape,
pattern, or the combination thereof, or the combination of the color with shape
and pattern, which are rich in an aesthetic appeal and are fit for industrial
application."
3. Article 5 is revised to read: "Patent rights shall not be granted for
invention-creations that violate the law or social ethics, or harm public
interests.
"Patent rights shall not be granted for inventions that are
accomplished by relying on genetic resources which are obtained or used in
violation of the provisions of laws and administrative regulations."
4. One paragraph is added in Article 9 as the first paragraph, which
reads: "Only one patent can be granted for the same invention. However, where
the same applicant applies for a utility model patent and an invention patent
with regard to the same invention on the same day, if the utility model patent
acquired earlier is not terminated yet and the applicant declares his waiver of
the same, the invention patent may be granted."
5. The second paragraph of Article 10 is revised to read: "If a Chinese
unit or individual intends to transfer the right to apply for a patent or patent
rights to a foreigner, foreign enterprise or other foreign organization, it or
he shall perform the procedures in accordance with the provisions of relevant
laws and administrative regulations."
6. The second paragraph of Article 11 is revised to read: "After a design
patent right is granted, no unit or individual may exploit the patent without
permission of the patentee, i.e., it or he may not, for production or business
purposes, manufacture, offer to sell, sell or import the design patent
products."
7. Article 12 is revised to read: "Any unit or individual that intends to
exploit the patent of another unit or individual shall conclude a contract with
the patentee for permitted exploitation and pay the royalties. The permittee
shall not have the right to allow any unit or individual not specified in the
contract to exploit the said patent."
8. The second paragraph of Article 14 is deleted.
9. One article is added as Article 15, which reads: "If there are
agreements regarding the exercise of rights by the co-owners of the right to
apply for the patent or of the patent right, the agreements shall prevail. In
the absence of such agreements, the co-owners may separately exploit the patent
or may, in an ordinary manner, permit others to exploit the said patent. where
others are permitted to exploit the patent, the royalties received shall be
distributed among the co-owners.
"Except under the circumstances specified in the preceding paragraph,
exercise of the co-owned right to apply for patent or of the co-owned patent
right shall be subject to the consent of all the co-owners."
10. Article 15 and 17 are merged into one article as Article 17, which
reads: "An inventor or designer shall have the right to state in the patent
documents that he is the inventor or designer.
"The patentee shall have the right to have his patent mark displayed on
the patented products or the package of such products."
11. The first paragraph of Article 19 is revised to read: "If a
foreigner, foreign enterprise, or other foreign organization without a regular
residence or business site in China intends to apply for a patent or handle
other patent-related matters in China, he or it shall entrust a legally
established patent agency with the application and such matters."
The second paragraph is revised to read: "If a Chinese unit or individual
intends to apply for a patent or handle other patent-related matters in China,
it or he may entrust a legally established patent agency with the application
and such matters."
12. The first paragraph of Article 20 is revised to read: "Any unit or
individual that intends to apply for patent in a foreign country for an
invention or utility model accomplished in China shall submit the matter to the
patent administration department under the State Council for confidentiality
examination. Such examination shall be conducted in conformity with the
procedures, time limit, etc. prescribed by the State Council."
One paragraph is added as the fourth paragraph, which reads: "With regard
to an invention or utility model for which an application is filed for a patent
in a foreign country in violation of the provisions of the first paragraph of
this Article, if an application is also filed for the patent in China, patent
right shall not be granted."
13. One paragraph is added into Article 21 as the second paragraph, which
reads: "The patent administration department under the State Council shall
release patent-related information in a complete, accurate and timely manner,
and publish patent gazettes on a regular basis."
14. The second paragraph of Article 22 is revised to read: "Novelty means
that the invention or utility model concerned is not an existing technology; no
patent application is filed by any unit or individual for any identical
invention or utility model with the patent administration department under the
State Council before the date of application for patent right, and no identical
invention or utility model is recorded in the patent application documents or
the patent documentations which are published or announced after the date of
application."
The third paragraph is revised to read: "Creativity means that, compared
with the existing technologies, the invention possesses prominent substantive
features and indicates remarkable advancements, and the utility model possesses
substantive features and indicates advancements."
One paragraph is added as the fifth paragraph, which reads: "For the
purposes of this Law, existing technologies mean the technologies known to the
public both domestically and abroad before the date of application."
15. Article 23 is revised to read: "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.
"Designs for which the patent right is to be granted shall be ones which
are distinctly different from the existing designs or the combinations of the
features of existing designs.
"Designs for which a patent right is granted shall be ones which are not
in conflict with the lawful rights acquired by others prior to the date of
application.
"For the purposes of this Law, existing designs mean designs
that are known to the public both domestically and abroad before the date of
application."
16. One subparagraph is added into the first paragraph of
Article 25 as Subparagraph (6), which reads: "designs that are mainly used for
marking the pattern, color or the combination of the two of prints."
17. The second paragraph of Article 26 is revised to read: "In the
written request shall be specified the name of the invention or utility model,
the name of the inventor or designer, the name or title and the address of the
applicant and other related matters."
The fourth paragraph is revised to read: "The written claim shall, based
on the written description, contain a clear and concise definition of the
proposed scope of patent protection."
One paragraph is added as the fifth paragraph, which reads: "With regard
to an invention-creation accomplished by relying on genetic resources, the
applicant shall, in the patent application documents, indicate the direct and
original source of the genetic resources. If the applicant cannot indicate the
original source, he shall state the reasons."
18. Article 27 is revised to read: "When a person intends to apply for a
design patent, he shall submit a written request, drawings or pictures of the
design, a brief description of the design, and other relevant documents.
"In the relevant drawings or pictures submitted by the applicant shall
clearly be shown the design of the products for which patent protection is
requested."
19. The second paragraph of Article 31 is revised to read: "An
application for a design patent shall be limited to one design. Two or more
similar designs of one and the same product or two or more designs of products
of the same kind that are sold or used in sets may be handled with one
application."
20. The second paragraph of Article 47 is revised to read: "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."
The third paragraph is revised to read: "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."
21. Article 48 is revised to read: "Under any of the following
circumstances, the patent administration department under the State Council may,
upon application made by any unit or individual that possesses the conditions
for exploitation, grant a compulsory license for exploitation of an invention
patent or utility model patent:
"(1) When it has been three years since the date the patent right is
granted and four years since the date the patent application is submitted, the
patentee, without legitimate reasons, fails to have the patent exploited or
fully exploited; or
"(2) The patentee's exercise of the patent right is in accordance with
law, confirmed as monopoly and its negative impact on competition needs to be
eliminated or reduced."
22. One article is added as Article 50, which reads: "For the benefit of
public health, the patent administration department under the State Council may
grant a compulsory license for manufacture of the drug, for which a patent right
has been obtained, and for its export to the countries or regions that conform
to the provisions of the relevant international treaties to which the People's
Republic of China has acceded."
23. One article is added as Article 52, which reads: "If an invention
involved in a compulsory license is a semi-conductor technology, the
exploitation thereof shall be limited to the purpose of public interests and to
the circumstances as provided for in Subparagraph (2) of Article 48 of this
Law."
24. One article is added as Article 53, which reads: "Except for the
compulsory license granted in accordance with the provisions of Subparagraph (2)
of Article 48 or Article 50 of this Law, compulsory license shall mainly be
exercised for the supply to the domestic market."
25. Article 51 is revised as Article 54, which reads: "A unit or
individual that applies for a compulsory license in accordance with the
provisions of Subparagraph (1) of Article 48 or Article 51 of this Law shall
provide evidence to show that it or he has, under reasonable terms, requests the
patentee's permission for exploitation of the patent, but fails to obtain such
permission within a reasonable period of time."
26. Article 54 is revised as Article 57, which reads: "The unit or
individual that is granted a compulsory license for exploitation shall pay
reasonable royalties to the patentee, or handle the issue of royalties in
accordance with the provisions of the relevant international treaties to which
the People's Republic of China has acceded. The amount of royalties to be paid
shall be subject to consultation between the two parties. In the event of
failure to reach an agreement between the two parties, the patent administration
department under the State Council shall make a ruling."
27. Article 56 is revised as Article 59, which reads: "For the patent
right of an invention or a utility model, the scope of protection shall be
confined to what is claimed, and the written description and the pictures
attached may be used to explain what is claimed.
"For the design patent right, the scope of protection shall be confined
to the design of the product as shown in the drawings or pictures, and the brief
description may be used to explain the said design as shown in the drawings or
pictures."
28. The second paragraph of Article 57 is revised as Article 61, which
reads: "If a dispute over patent infringement involves an invention patent for
the method of manufacturing a new product, the unit or individual manufacturing
the same product shall provide evidence to show that the manufacturing method of
their own product 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."
29. One article is added as Article 62, which reads: "In a patent
infringement dispute, if the accused infringer has evidence to prove that the
technology or design exploited is an existing technology or design, the
exploitation shall not constitute a patent right infringement."
30. Article 58 and 59 are merged into one article as Article 63, which
reads: "A person who counterfeits the patent of another person shall, in
addition to bearing civil liabilities in accordance with law, be ordered by the
administration department for patent-related work to put it right, and the
department shall make the matter known to the public, confiscate his unlawful
gains and, in addition, impose on him a fine of not more than four times the
unlawful gain; if there are no unlawful gains, a fine of not more than RMB
200,000 may be imposed on him; and if a crime is constituted, criminal
responsibility shall be pursued in accordance with law."
31. One article is added as Article 64, which reads: "When the
administration department for patent-related work investigates and handles the
suspected counterfeiting of a patent, it may, based on evidence obtained,
inquire the parties concerned, and investigate the circumstances related to the
suspected illegal act; it may conduct on-the-spot inspection of the places where
the suspected illegal act is committed; consult and duplicate the relevant
contracts, invoices, account books and other related materials; and check the
products related to the suspected illegal act and seal or detain the products
that are proved to be produced by the counterfeited patent.
"When the administration department for patent-related work performs its
duties as prescribed in the preceding paragraph, the parties concerned shall
provide assistance and cooperation, instead of refusing to do so or creating
obstacles."
32. Article 66 is revised as Article 65, which reads: "The amount of
compensation for patent right infringement shall be determined according to the
patentee's actual losses caused by the infringement. If it is hard to determine
the actual losses, the amount of compensation may be determined according to the
benefits acquired by the infringer through the infringement. If it is hard to
determine the losses of the patentee or the benefits acquired by the infringer,
the amount of compensation may be determined according to the reasonably
multiplied amount of the royalties of that patent. The amount of compensation
shall include the reasonable expenses paid by the patentee for putting an end to
the infringement.
"If the losses of the patentee, benefits of the infringer, or royalties
of the patent are all hard to determine, the people's court may, on the basis of
the factors such as the type of patent right, nature of the infringement, and
seriousness of the case, determine the amount of compensation within the range
from 10,000 yuan to 1,000,000 yuan."
33. Article 61 is revised as Article 66, which reads: "If the patentee or
interested party has evidence to prove that another person is committing or is
about to commit a patent infringement, which, unless being checked in time, may
cause irreparable harm to his lawful rights and interests, he may, before taking
legal action, file an application to request that the people's court order to
have such act ceased.
"When filing such an application, the applicant shall provide guarantee.
In the event of failure to provide guarantee, the application shall be
rejected.
"The people's court shall make a ruling within 48 hours from the time of
its acceptance of the application. If an extension is needed under special
circumstances, a 48-hour extension may be allowed. If a ruling is made to order
to have the relevant act ceased, it shall be enforced immediately. The party
that is dissatisfied with the ruling may file once for review, and the
enforcement shall not be suspended during the period of review.
"If the applicant does not take legal action within 15 days from the date
the people's court takes measures to have the relevant act ceased, the people's
court shall lift such measures.
"If the application is wrong, the applicant shall compensate the losses
suffered by respondent due to ceasing of the relevant act."
34. One article is added as Article 67, which reads: "To check a patent
infringement, when evidence might be lost or might be hard to acquire
thereafter, the patentee or interested party may, before taking legal action,
file an application with the people's court for evidence preservation."
"If the people's court takes preservation measures, it may order the
applicant to provide guarantee. If the applicant fails to provide guarantee, the
application shall be rejected."
"The people's court shall make a ruling within 48 hours from the time of
its acceptance of the application. If it rules to take preservation measures,
such a ruling shall be enforced immediately."
"If the applicant does not take legal action within 15 days from the date
the people's court takes preservation measures, the people's court shall lift
such measures."
35. The first paragraph of Article 63 is revised as Article 69, and
Subparagraph (1) is revised to read: "After a patented product or a product
directly obtained by using the patented method is sold by the patentee or sold
by any unit or individual with the permission of the patentee, any other person
uses, offers to sell, sells or imports that product;"
One subparagraph is added as Subparagraph (5), which reads: "Any person
produces, uses, or imports patented drugs or patented medical apparatus and
instruments, for the purpose of providing information required for
administrative examination and approval, or produces or any other person imports
patented drugs or patented medical apparatus and instruments especially for that
person."
36. The second paragraph of Article 63 is revised as Article 70, which
reads: "Where any person, for the purpose of production and business operation,
uses, offers to sell or sells a patent-infringing product without knowing that
such product is produced and sold without permission of the patentee, he shall
not be liable for compensation provided that the legitimate source of the
product can be proved."
This Decision shall go into effect as of October 1, 2009.
The Patent Law of the People's Republic of China shall be revised and the
order of the articles shall be rearranged correspondingly in accordance with
this Decision, and the Law shall be promulgated anew.