Source:http://www.chinalaw.gov.cn/article/cazjgg/201512/20151200479591.shtml
To further enhance the openness and transparency of legislation and to improve the quality of legislation, the Legislative Affairs Office of the State Council had decided to to release "Draft Amendments to the People's Republic of China Patent Law (deliberation draft)," (hereinafter "deliberation draft"), which was submitted to the State Council by the State Intellectual Property Office for deliberation, and to solicit public comments from all quarters of society to facilitate further research, and then send a revised version to the State Council for deliberation. The following notifications are hereby made:
Concerned units and people from all fields have until January 1, 2016, to submit comments through the following three ways:
(1) Log in to the Chinese Government Legal Information Website (Address: http://www.chinalaw.gov.cn), and on the left side of the home page find the"Laws and Regulations Drafts Public Comment Solicitation System", to submit comments on the deliberation draft.
(2) Send comments by mail to: Beijing City post box 2067 (zip code: 100035), and indicate word "patent law revision comments" on the envelope.
(3) Send comments by e-mail to: ZLF@chinalaw.gov.CN
Draft Amendments of the Patent Law of the People's Republic of China (Deliberation Draft) For Solicitation of Comments
Translation modified from translation of current law: http://english.sipo.gov.cn/laws/lawsregulations/201101/t20110119_566244.html
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Chapter 1: General Provisions
Article 1:
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.
Article 2:
For the purposes of this Law, invention-creations mean inventions, utility models and designs.
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 an overall product or its parts, 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.
Article 3:
The Patent Administration Department under the State Council shall be responsible for the administration of patent-related work nationwide, shall accept and examine patent applications in a uniform way and grant patent rights in accordance with law, is responsible for market management and supervision related to patents, inspects patent infringement and patent fraud actions with major impact, establishes a public service system for patent information, and promotes the use and transmission of patent information.
Local people’s governments’ patent administration departments are responsible for patent work within their administrative areas, carrying out patent administrative enforcement in accordance with law and providing public patent services.
Local people’s government patent administration departments as used in the preceding paragraph refers to patent administration departments of people’s governments at the provincial level, districted municipality level, as well as county when authorized by laws or regulations.
Article 4:
Where an invention-creation for the patent of which an application is filed involves national security or other major interests of the State and confidentiality needs to be maintained, the application shall be handled in accordance with the relevant regulations of the State.
Article 5:
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.
Article 6:
An invention-creation that is accomplished in the course of performing the duties of an employee shall be deemed an employment invention-creation.
For an employment invention-creation, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee.
For a non-employment invention-creation, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee.
For an invention-creation that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail; if there is no contract, the ownership of the right to apply for the patent is with the inventor or designer.
Article 7:
No unit or individual shall prevent the inventor or designer from filing a patent application for a non-employment invention.
Article 8:
With regard to an invention-creation accomplished by two or more units or individuals in collaboration, or an invention-creation accomplished by an unit or individual under the entrustment of another unit or individual, the right to apply for a patent shall be vested in the units or individuals that have accomplished the invention-creation in collaboration or in the unit or individual that has done so under entrustment, unless it is otherwise agreed upon. After the application is granted, the applying units or individuals shall be deemed the patentees.
Article 9:
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.
If two or more applicants apply for a patent for the same invention separately, the patent right shall be granted to the first applicant.
Article 10:
The right to apply for a patent and patent rights may be transferred.
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.
For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the patent administration department under the State Council, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date.
Article 11:
After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, 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, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method.
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.
Article 12:
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.
Article 13:
After the application for an invention patent is published, the applicant may require the unit or individual that exploits the said patent to pay an appropriate amount of royalties.
Article 14: (Newly Added, Original Text Moved to Article 80)
Applications for patents and the exercise of patent rights shall follow the principle of good faith. Patent rights must not be abused to harm the public interest or to unreasonably exclude or limit competition.
Article 15:
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.
Article 16:
After employment invention-creation patent rights are granted, a unit shall reward its inventor or designer. After such patent is applied, the unit shall give a reasonable amount of remuneration to the inventor or designer according to the scope of application and the economic results. If the unit and inventor or designer have contracted, in accordance with paragraph 4 of article 6 of this law, that the right to apply for an invention-creation patent belongs to the unit, the unit shall follow the preceeding paragraph to reward and compensate the inventor or designer.
Article 17:
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.
Article 18:
Where a foreigner, foreign enterprise or other foreign organization without a regular residence or business site in China applies for a patent in China, the application shall be handled in accordance with the agreements concluded by the country he or it belongs to and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity.
Article 19:
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 follow provisions to entrust a legally established patent agency with the application and such matters.
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.
A patent agency and its patent agents shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies and their patent agents shall be formulated by the State Council.
Article 20:
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.
A Chinese unit or individual may apply for international patent applications and receive corresponding protections in accordance with the relevant international treaties to which China has acceded. Applicants submitting international patent applications shall comply with the provisions of the preceding paragraph.
The patent administration department under the State Council shall handle international applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council.
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.
Article 21:
The patent administration department under the State Council and its Patent Review Board shall, according to the requirements of objectivity, fairness, accuracy and timeliness, handle patent applications and requests in accordance with law.
The patent administration department under the State Council shall release patent-related information in a complete, accurate and timely manner, publish patent gazettes on a regular basis, and provide basic data on patent information.
Before a patent application is published or announced, the staff members of the patent administration department under the State Council and the persons concerned shall be obligated to keep such application confidential.
Chapter II Conditions for Granting Patent Rights
Article 22:
Inventions and utility models for which patent rights are to be granted shall be ones which are novel, creative and of practical use.
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.
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.
Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.
For the purposes of this Law, existing technologies mean the technologies known to the public both domestically and abroad before the date of application.
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.
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.
Article 24:
Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances:
(1) It is 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 specified academic or technological conference; and
(3) Its contents are divulged by others without the consent of the applicant.
Article 25:
Article 25 Patent rights shall not be granted for any of the following:
(1) scientific discoveries;
(2) rules and methods for intellectual activities;
(3)methods for the diagnosis or treatment of diseases;
(4) animal or plant varieties;
(5) nuclear transformation methods and substances obtained by means of nuclear transformation
(6) designs that are mainly used for marking the pattern, color or the combination of the two of prints.
The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.
Chapter III Patent Application
Article 26:
When a person intends to apply for an invention or utility model patent, he shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim.
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 written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model.
The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.
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.
Article 27:
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.
Article 28:
The date when the patent administration department under the State Council receives the patent application documents is the date of application. If the application documents are delivered by post, the date of the postmark is the date of application.
Article 29:
If, within twelve months from the date the applicant first files an application for an invention or utility model patent in a foreign country, or within six months from the date the applicant first files an application for a design patent in a foreign country, he files an application for a patent in China for the same subject matter, he may enjoy the right of priority in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the principle of mutual recognition of the right of priority.
If, within twelve months form the date the applicant first files an application for an invention or utility model patent in China, or within six months from the date on which the applicant first files an application for a design patent in China, and also submits an application for a patent to the patent administration department under the State Council for the same subject matter, the applicant may enjoy the right of priority.
Article 30:
An applicant who requests the right of priority shall follow procedures to submit a written declaration at the time of application and provide duplicates of the patent application documents filed for the first time. Where provisions are not followed to submit a written declaration or no duplicates of the patent application documents are provided at the expiration of the specified time limit, the applicant shall be deemed to have waived the right of priority.
Article 31:
An application for an invention patent or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models embodied in a single general invention concept may be handled with one application.
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.
Article 32:
An applicant may withdraw his patent application anytime before being granted the patent right.
Article 33:
An applicant may amend his patent application documents, provided that the amendment to the invention or utility model patent application documents does not exceed the scope specified in the original written descriptions and claims, or that the amendment to the design patent application documents does not exceed the scope shown in the original drawings or pictures.
Chapter IV Examination and Approval of Patent Applications
Article 34:
Upon receipt of an invention patent application, if the patent administration department under the State Council, after preliminary examination, confirms that the application meets the requirements of this Law, it shall publish the application within 18 full months from the date of application. And it may do so at an earlier date upon request of the applicant.
Article 35:
Within three years from the date an invention patent application is filed, the patent administration department under the State Council may, upon request made by the applicant at any time, carry out substantive examination of the application. If the applicant, without legitimate reasons, fails to request substantive examination at the expiration of the time limit, such application shall be deemed to have been withdrawn.
The patent administration department under the State Council may carry out substantive examination of its own accord, as it deems it necessary.
Article 36:
When an applicant for an invention patent requests substantive examination, he shall submit the reference materials relating to the invention existing prior to the date of application.
If an application has been filed for an invention patent in a foreign country, the patent administration department under the State Council may require the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or materials concerning the results of any examination made in the country. In the event of the applicant’s failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.
Article 37:
After the patent administration department under the State Council has made the substantive examination of the invention patent application, if it finds that the application does not conform to the provisions of this Law, it shall notify the applicant of the need to state its opinions within a specified time limit or to make amendment to the application. In the event of the applicant’s failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.
Article 38:
After the applicant states his opinions on or makes amendment to the invention patent application, if the patent administration department under the State Council still believes the application does not conform to the provisions of this Law, it shall reject the application.
Article 39:
If no reason for rejection is discerned after an invention patent application is substantively examined, the patent administration department under the State Council shall make a decision on granting of the invention patent right, issue an invention patent certificate, and meanwhile register and announce the same. The invention patent right shall become effective as of the date of announcement.
Article 40:
If no reason for rejection is discerned after preliminary examination of a utility model or design patent application, the patent administration department under the State Council shall make a decision on granting of the utility model or design patent right, issue a corresponding patent certificate, and meanwhile register and announce the same. The utility model patent right and the design patent right shall become effective as of the date of announcement.
Article 41:
The patent administration department under the State Council shall establish a patent review board. If a patent applicant is dissatisfied with the decision made by the Patent Administration Department under the State Council on rejecting of the application, he may, within three months from the date of receipt of the notification, file a request with the patent review board for review.
The patent review board reviews requests to conduct an examination, and when necessary may conduct an examination of other circumstances regarding whether the patent application meets the requirements of the relevant provisions of this law, make a decision and notify the applicant.
If the patent applicant is dissatisfied with the review decision made by the patent review board, he may take legal action before the people’s court within three months from the date of receipt of the notification.
Chapter V Duration, Termination and Invalidation of Patent Rights
Article 42:
The duration of the invention patent right shall be 20 years, that of the utility model patent right shall be be 10 years, and that of the design patent shall be 15 years, all commencing from the date of application.
Article 43:
The patentee shall pay annual fees commencing from the year when the patent right is granted.
Article 44:
Under any of the following circumstances, the patent right shall be terminated before the expiration of the duration:
(1) failure to pay the annual fee as required; or
(2) the patentee waiving of the patent right by a written declaration;
If a patent right is terminated before the duration expires, the patent administration department under the State Council shall register and announce such termination.
Article 45:
Beginning from the date the patent administration department under the State Council announces the grant of a patent right, if a unit or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent review board declare the said patent right invalid.
Article 46:
The patent review board shall conduct an examination of the request for declaring a patent right invalid, and when necessary may also conduct an examination of other circumstances concerning whether the patent right complies with relevant provisions of this law, and make a decision in a timely manner and notify the requesting person and the patentee of its decision. Decisions declaring a patent right invalid or sustaining a patent right shall be registered and announced by the patent administration department under the State Council.
A person that is dissatisfied with the patent review board’s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people’s court, within three months from the date of receipt of the notification. The people’s court shall notify the opposite party in the invalidation 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 or punishment in 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 Exploitation of a Patent
Article 48:
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.
Article 49:
Where a national emergency or any extraordinary state of affairs occurs, or public interests so require, the patent administration department under the State Council may grant a compulsory license for exploitation of an invention patent or utility model patent.
Article 50:
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.
Article 51:
If an invention or utility model, for which the patent right has been obtained, represents a major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of the former relies on exploitation of the latter, the patent administration department under the State Council may, upon application made by the latter, grant it a compulsory license to exploit the earlier invention or utility model.
Under the circumstance where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon application made by the earlier patentee, grant it a compulsory license to exploit the later invention or utility model.
Article 52:
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.
Article 53:
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.
Article 54:
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.
Article 55:
The decision made by the patent administration department under the State Council on granting of a compulsory license for exploitation shall be notified to the patentee in a timely manner and shall be registered and announced.
In a decision on granting of the compulsory license for exploitation shall, according to the reasons justifying the compulsory license, be specified the scope and duration for exploitation. When such reasons cease to exist and are unlikely to recur, the patent administration department under the State Council shall, upon request by the patentee, make a decision to terminate the compulsory license after examination.
Article 56:
Any unit or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploitation and shall not have the right to allow exploitation by others.
Article 57:
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.
Article 58:
If a patentee is dissatisfied with the decision made by the patent administration department under the State Council -on granting of the compulsory license for exploitation, or if the patentee, or the unit or individual that has obtained the compulsory license for exploitation is dissatisfied with the ruling made by the patent administration department under the State Council regarding the royalties for the compulsorily licensed exploitation, it or he may take legal action before the people’s court within three months from the date of receipt of the notification of the ruling.
Chapter VII Protection of Patent Rights
Article 59:
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.
Article 60:
If a dispute arises as a result of exploitation of a patent without permission of the patentee, that is, the patent right of the patentee is infringed, the dispute shall be settled through consultation between the parties. If the parties are not willing to consult or if consultation fails, the patentee or interested party may take legal action before a people’s court, and may also request the patent administration department to handle the dispute. If, when handling the dispute, the said department believes the infringement is established, it may order the infringer to cease the infringement immediately; if the infringer is dissatisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, take legal action before a people’s court in accordance with the Administrative Procedure Law of the People’s Republic of China. If the infringer neither takes legal action at the expiration of the time limit nor ceases the infringement, the said department may file an application with the people’s court for compulsory enforcement. The patent administration department that handles the call shall, upon request of the parties, carry out mediation concerning the amount of compensation for the patent right infringement. If mediation fails, the parties may take legal action before the people’s court in accordance with the Civil Procedure Law of the People’s Republic of China.
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.
Article 61 (Newly Added)
Patent administrative departments handling patent infringement disputes, at the request of the parties, may conduct mediation on the amount of compensation for patent infringement; if mediation fails, the parties may sue in the people’s court in accordance with the “People’s Republic of China Civil Procedure Law.” If after a mediation agreement is established, one party refuses to perform or does not fully perform, the other party may apply to court to confirm and compel enforcement.
Article 62 (Newly Added):
Those who clearly know that a product line is devoted to the raw materials, intermediates, components or equipment, for implementing the patent, and providing the product to others to carry out acts that infringe on the patent, without the authorization of the patentee and for production and business purposes, shall bear joint liability with the infringer.
Those clearly knowing that a product or method is patented but entice others to perform acts infringing the patent without the patentees permission and for production or business purposes, shall bear joint liability with the infringer.
Article 63 (Newly Added)
Where network service provides know or should know that users are exploiting the network services they provide to violate patent rights or counterfeit patents, and do not promptly adopt necessary measures to stop it, such as deleting, blocking or breaking links to infringing products, they shall bear joint liability with the network users.
Where the patentee or an interested party has evidence showing that a network user used a network service to infringe or counterfeit their patent, they may notify the network service provide to adopt the necessary measures to stop it described in the preceding paragraph. Where the network service provider does not promptly adopt necessary measures after receiving effective notice, it bears liability for the expansion of the harm and joint liability with that network user.
Where the patent administration department determines that a network user has exploited network services to infringe patent right or counterfeit patents, it shall notify the network service providers to adopt the necessary measures to stop it as described in the first paragraph of this article, and where the network service providers do not promptly employ the necessary measures, they are liable for the expanded harms and bear joint liability with the network user.
Article 64:
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 patent administration department 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. The parties of either side may actively issue the patent right assessment report described above.
Article 65:
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.
Article 66:
A person who counterfeits the patent of another person shall, in addition to bearing civil liabilities in accordance with law, be ordered by the patent administration department to put it right, and the department shall make the matter known to the public. If proceeds from the illegal business exceed 50,000 rmb, a fine of between 1-5 times the amount of the proceeds may be imposed; if there are no proceeds from illegal business, or they are less than 50,000 rmb, a fine of 250,000 rmb may be given; and if a crime is constituted, criminal responsibility shall be pursued in accordance with law.
Article 67:
When the patent administration department investigates or handles the suspected violation of patent rights or counterfeiting of a patent, it may, based on evidence obtained, query 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 seize the products that are shown to be products disrupting market order by intentionally violating patent rights or counterfeit patent products.
When the patent administration department performs its duties as prescribed in the preceding paragraph, the parties concerned shall provide assistance and cooperation, If parties refuse or obstruct the patent administration office in performing its duties, the department will give a warning; where it constitutes a violation of public security management administration, the public security organ shall give a penalty in accordance with law; where a crime is constituted, criminal responsibility is pursued in accordance with law.
Article 68:
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. For intentional violations of patents, the people’s courts may, on the basis of the factors such as circumstances, form, and harmful consequences of infringement, give a fine of between 1-3 times the amount determined by the method described above. 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 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 100,000 yuan to 5,000,000 yuan.
After establishing a violation of patent rights, to determine the amount of compensation in situations where the patentee has already produced evidence to the extent possible and the books and materials related to the infringement are primarily in the hands of the infringer, people’s courts may order the infringer to provide books and materials relevant to the infringing conduct; if the infringer does not so provide, or provides false books and materials, the people’s courts can determine the amount of compensation from consideration of the patentee’s desire and the evidence they have provided.
Article 69:
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.
Article 70:
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.
Article 71:
The period of limitation for action against patent right infringement shall be two years, commencing from the date when the patentee or interested party knows or should have known of the infringement.
If an appropriate royalty is not paid for using an invention during the period from the publication of the invention patent application to the grant of the patent right, the period of limitation for taking legal action by the patentee for requesting payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by another person. However, the period of limitation for action shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted.
Article 72:
The following shall not be deemed to be patent right infringement:
(1) 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;
(2) Before the date of patent application, any other person has already manufactured identical products, used identical method or has made necessary preparations for the manufacture or use and continues to manufacture the products or use the method within the original scope;
(3) With respect to any foreign means of transportation that temporarily passes through the territory, territorial waters, or territorial airspace of China, the relevant patent is used in the devices and installations for its own needs, in accordance with the agreement concluded between the country it belong to and China, or in accordance with any international treaty to which both countries have acceded, or on the principle of mutual benefit;
(4) Any person uses the relevant patent specially for the purpose of scientific research and experimentation; and
(5) 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.
Article 73:
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.
Article 74 (Newly Added)
Patent administration departments shall establish a patent protection credit information archive, and incorporated it for sharing into the national credit information sharing platform.
Article 75 (Newly Added)
The establishment of a patent agency or to obtainment of patent agent credentials must be upon approval of the patent administration department under the State Council
Units and individuals must not engage in operations as patent agents for business purposes without the permission of the patent administration office under the State Council. If this provision is violated, the patent administration department will order the unlawful conduct stopped, confiscate unlawful gains, and may give a concurrent fine.
Article 76:
If, in violation of the provisions of Article 20 of this Law, a person files an application for patent in a foreign country, thereby divulging national secrets, the unit where he works or the competent authority at a higher level shall impose on him a sanction. If a crime is constituted, he shall be investigated for criminal responsibility according to law.
(Deleted)
Article 77:
Patent Administration Department shall not be involved in recommending patented products to the public or engage in any other similar business activities.
If the work of the patent administration department violates the provisions of the preceding paragraph, its immediate superior or the supervisory authority shall order it to rectify, and confiscate its unlawful gains, if any; if the circumstances are serious, the principal leading person directly in charge and the other persons directly responsible shall be given sanctions in accordance with law.
Article 78:
Where a staff member of the government department engaged in administration of patent-related work or of a relevant department neglects his duty, abuses his power, or commits irregularities for personal gain he shall be given a sanction in accordance with law; and if it constitutes a crime, he shall be pursued for criminal responsibility in accordance with law.
Chapter VIII of the implementation and application of patents (newly added)
Article 79 (Newly Added)
Patent administration departments at all levels shall promote the implementation and application, encouraging and regulating the marketization of patent information and patent application activities.
Article 80 (Formerly Article 14)
If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people’s government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.
Article 81 (Newly Added)
After patent rights in employment invention-creations have been obtained by research and development organizations or schools for higher learning set up by the state, the inventor or designer may negotiate with the unit over their own application or permitting others to apply the patent, so long as it does not change or transfer the ownership of patent rights, and may enjoy rights and interests in accordance with the agreement.
Article 82 (Newly Added)
If a patentee declares in writing to the Patent Office that it is willing to permit any person to implement their patent and clarifies royalties, the Patent Administration Department shall announce this and, the implementation of licenses of right.
Declarations on licenses of right for utility or design patents, shall provide a patent rights assessment report.
Withdrawal of declarations for licenses of right shall be submitted in writing and be publicly announced by the patent administration department under the State Council. If licence of right declarations are withdrawn, it does not impact the validity of licenses of right previously given.
Article 83 (Newly Added)
Any persons desiring to apply a patent under a licences of right, shall notify the patentee in writing to obtain a license of right, and pay royalties.
The licensee under a license of right may make a record with the patent administration department under the State Council as proof of obtaining the license of right.
During the period of the license of right, the patentee must not sole or exclusive licenses to the patent, or request pre-trial temporary injunctions.
Article 84 (Newly Added)
If parties have a dispute over licenses of right, they may request the patent administration office under the state council make a judgment. If parties are dissatisfied with the judgment, they may file suit in a people’s court within 15 days of receiving notice.
Article 85 (Newly Added)
Where patentees that participate in the formulation of national standards do not disclose standard-essential patents they have during the standards drafting process, it is viewed as their permitting the standard’s application or use of that patented technology. Royalties for use are negotiated by the parties, and where the parties are unable to reach an agreement, they may request the patent administration department under the State Council to make a ruling. Where parties are dissatisfied with the ruling, they may file suit in the people’s courts within 15 days of receiving notice.
Article 86 (Newly Added):
Where patent rights are pledged to secure a loan, the borrower and lender jointly register the pledge with the patent administration department under the State Council, and the pledge takes effect from the date of registration.
Chapter IX Supplementary Provisions
Article 87:
To apply for patent at the patent administrative department under the State Council or go through other formalities, fees shall be paid in accordance with relevant regulations.
Article 88 (Newly Added):
Patent agency industry organizations shall accept the guidance and supervision of the patent administrative departments.
Patent agency industry organizations shall follow provisions of their charter to strictly enforce requirements for accepting members and punish members for violations of industry self-discipline standard; acceptance members and punishments of members shall be promptly reported to the public.
Article 89:
This Law shall take effect on April 1, 1985. [/two_third] [one_third_last] (条文中黑体部分为修改内容)
Chapter I: General Provisions
第一条 为了保护专利权人的合法权益,鼓励发明创造,推动发明创造的应用,提高创新能力,促进科学技术进步和经济社会发展,制定本法。
第二条 本法所称的发明创造是指发明、实用新型和外观设计。
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.
外观设计,是指对产品的整体或者局部的形状、图案或者其结合以及色彩与形状、图案的结合所作出的富有美感并适于工业应用的新设计。
第三条 国务院专利行政部门负责管理全国的专利工作,统一受理和审查专利申请,依法授予专利权,负责涉及专利的市场监督管理,查处有重大影响的专利侵权和假冒专利行为,建设专利信息公共服务体系,促进专利信息传播与利用.
地方人民政府专利行政部门负责本行政区域内的专利工作,依法开展专利行政执法,提供专利公共服务.
前款所称地方人民政府专利行政部门是指省级、设区的市级以及法律法规授权的县级人民政府专利行政部门.
第四条 申请专利的发明创造涉及国家安全或者重大利益需要保密的,按照国家有关规定办理。
第五条 对违反法律、社会公德或者妨害公共利益的发明创造,不授予专利权。
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.
Article 6: An invention-creation that is accomplished in the course of performing the duties of an employee shall be deemed an employment invention-creation.
For an employment invention-creation, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee.
For a non-employment invention-creation, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee.
利用本单位的物质技术条件所完成的发明创造,单位与发明人或者设计人订有合同,对申请专利的权利和专利权的归属作出约定的,从其约定;没有约定的,申请专利的权利属于发明人或者设计人。
第七条 对发明人或者设计人的非职务发明创造专利申请,任何单位或者个人不得压制。
第八条 两个以上单位或者个人合作完成的发明创造、一个单位或者个人接受其他单位或者个人委托所完成的发明创造,除另有协议的以外,申请专利的权利属于完成或者共同完成的单位或者个人;申请被批准后,申请的单位或者个人为专利权人。
第九条 同样的发明创造只能授予一项专利权。但是,同一申请人同日对同样的发明创造既申请实用新型专利又申请发明专利,先获得的实用新型专利权尚未终止,且申请人声明放弃该实用新型专利权的,可以授予发明专利权。
If two or more applicants apply for a patent for the same invention separately, the patent right shall be granted to the first applicant.
第十条 专利申请权和专利权可以转让。
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.
For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the patent administration department under the State Council, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date.
第十一条 发明和实用新型专利权被授予后,除本法另有规定的以外,任何单位或者个人未经专利权人许可,都不得实施其专利,即不得为生产经营目的制造、使用、许诺销售、销售、进口其专利产品,或者使用其专利方法以及使用、许诺销售、销售、进口依照该专利方法直接获得的产品。
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.
第十二条 任何单位或者个人实施他人专利的,应当与专利权人订立实施许可合同,向专利权人支付专利使用费。被许可人无权允许合同规定以外的任何单位或者个人实施该专利。
第十三条 发明专利申请公布后,申请人可以要求实施其发明的单位或者个人支付适当的费用。
第十四条(新增,原条文移至第八十条) 申请专利和行使专利权应当遵循诚实信用原则。不得滥用专利权损害公共利益或者不合理地排除、限制竞争.
第十五条 专利申请权或者专利权的共有人对权利的行使有约定的,从其约定。没有约定的,共有人可以单独实施或者以普通许可方式许可他人实施该专利;许可他人实施该专利的,收取的使用费应当在共有人之间分配。
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.
Article 16: 职务发明创造被授予专利权后,单位应当对其发明人或者设计人给予奖励;发明创造专利实施后,单位应当根据其推广应用的范围和取得的经济效益,对发明人或者设计人给予合理的报酬。
If the unit and inventor or designer have contracted, in accordance with paragraph 4 of article 6 of this law, that the the right to apply for an invention-creation patent belongs to the unit, the unit shall follow the preceeding paragraph to reward and compensate the inventor or designer.
第十七条 发明人或者设计人有权在专利文件中写明自己是发明人或者设计人。
The patentee shall have the right to have his patent mark displayed on the patented products or the package of such products.
第十八条 在中国没有经常居所或者营业所的外国人、外国企业或者外国其他组织在中国申请专利的,依照其所属国同中国签订的协议或者共同参加的国际条约,或者依照互惠原则,根据本法办理。
第十九条 在中国没有经常居所或者营业所的外国人、外国企业或者外国其他组织在中国申请专利和办理其他专利事务的,应当按照规定委托依法设立的专利代理机构办理。
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.
专利代理机构以及专利代理师应当遵守法律、行政法规,按照被代理人的委托办理专利申请或者其他专利事务;对被代理人发明创造的内容,除专利申请已经公布或者公告的以外,负有保密责任。专利代理机构以及专利代理师的具体管理办法由国务院规定。
第二十条 任何单位或者个人将在中国完成的发明或者实用新型向外国申请专利的,应当事先报经国务院专利行政部门进行保密审查。保密审查的程序、期限等按照国务院的规定执行。
中国单位或者个人可以根据中华人民共和国参加的有关国际条约提出国际申请并获得相关保护。申请人提出国际申请的,应当遵守前款规定。
国务院专利行政部门依照中华人民共和国参加的有关国际条约、本法和国务院有关规定处理国际申请.
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.
第二十一条 国务院专利行政部门及其专利复审委员会应当按照客观、公正、准确、及时的要求,依法处理有关专利的申请和请求。
国务院专利行政部门应当完整、准确、及时发布专利信息,定期出版专利公报,提供专利信息基础数据.
Before a patent application is published or announced, the staff members of the patent administration department under the State Council and the persons concerned shall be obligated to keep such application confidential.
Chapter II Conditions for Granting Patent Rights
第二十二条 授予专利权的发明和实用新型,应当具备新颖性、创造性和实用性。
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.
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.
Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.
For the purposes of this Law, existing technologies mean the technologies known to the public both domestically and abroad before the date of application.
第二十三条 授予专利权的外观设计,应当不属于现有设计;也没有任何单位或者个人就同样的外观设计在申请日以前向国务院专利行政部门提出过申请,并记载在申请日以后公告的专利文件中。
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.
第二十四条 申请专利的发明创造在申请日以前六个月内,有下列情形之一的,不丧失新颖性:
(一)在中国政府主办或者承认的国际展览会上首次展出的;
(二)在规定的学术会议或者技术会议上首次发表的;
(三)他人未经申请人同意而泄露其内容的。
第二十五条 对下列各项,不授予专利权:
(1) scientific discoveries;
(2) rules and methods for intellectual activities;
(3)methods for the diagnosis or treatment of diseases;
(4) animal or plant varieties;
(5)原子核变换方法以及用原子核变换方法获得的物质;
(6) designs that are mainly used for marking the pattern, color or the combination of the two of prints.
The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.
Chapter III Patent Application
第二十六条 申请发明或者实用新型专利的,应当提交请求书、说明书及其摘要和权利要求书等文件。
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 written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model.
The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.
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.
第二十七条 申请外观设计专利的,应当提交请求书、该外观设计的图片或者照片以及对该外观设计的简要说明等文件。
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.
第二十八条 国务院专利行政部门收到专利申请文件之日为申请日。如果申请文件是邮寄的,以寄出的邮戳日为申请日。
第二十九条 申请人自发明或者实用新型在外国第一次提出专利申请之日起十二个月内,或者自外观设计在外国第一次提出专利申请之日起六个月内,又在中国就相同主题提出专利申请的,依照该外国同中国签订的协议或者共同参加的国际条约,或者依照相互承认优先权的原则,可以享有优先权。
申请人自发明或者实用新型在中国第一次提出专利申请之日起十二个月内,或者外观设计在中国第一次提出专利申请之日起六个月内,又向国务院专利行政部门就相同主题提出专利申请的,可以享有优先权。
第三十条 申请人要求优先权的,应当按照规定提出书面声明,并且提供第一次提出的专利申请文件的副本;未按照规定提出书面声明或者提供专利申请文件副本的,视为未要求优先权。
第三十一条 一件发明或者实用新型专利申请应当限于一项发明或者实用新型。属于一个总的发明构思的两项以上的发明或者实用新型,可以作为一件申请提出。
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.
第三十二条 申请人可以在被授予专利权之前随时撤回其专利申请。
第三十三条 申请人可以对其专利申请文件进行修改,但是,对发明和实用新型专利申请文件的修改不得超出原说明书和权利要求书记载的范围,对外观设计专利申请文件的修改不得超出原图片或者照片表示的范围。
Chapter IV Examination and Approval of Patent Applications
第三十四条 国务院专利行政部门收到发明专利申请后,经初步审查认为符合本法要求的,自申请日起满十八个月,即行公布。国务院专利行政部门可以根据申请人的请求早日公布其申请。
第三十五条 发明专利申请自申请日起三年内,国务院专利行政部门可以根据申请人随时提出的请求,对其申请进行实质审查;申请人无正当理由逾期不请求实质审查的,该申请即被视为撤回。
The patent administration department under the State Council may carry out substantive examination of its own accord, as it deems it necessary.
第三十六条 发明专利的申请人请求实质审查的时候,应当提交在申请日前与其发明有关的参考资料。
If an application has been filed for an invention patent in a foreign country, the patent administration department under the State Council may require the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or materials concerning the results of any examination made in the country. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.
第三十七条 国务院专利行政部门对发明专利申请进行实质审查后,认为不符合本法规定的,应当通知申请人,要求其在指定的期限内陈述意见,或者对其申请进行修改;无正当理由逾期不答复的,该申请即被视为撤回。
第三十八条 发明专利申请经申请人陈述意见或者进行修改后,国务院专利行政部门仍然认为不符合本法规定的,应当予以驳回。
第三十九条 发明专利申请经实质审查没有发现驳回理由的,由国务院专利行政部门作出授予发明专利权的决定,发给发明专利证书,同时予以登记和公告。发明专利权自公告之日起生效。
第四十条 实用新型和外观设计专利申请经初步审查没有发现驳回理由的,由国务院专利行政部门作出授予实用新型专利权或者外观设计专利权的决定,发给相应的专利证书,同时予以登记和公告。实用新型专利权和外观设计专利权自公告之日起生效。
第四十一条 国务院专利行政部门设立专利复审委员会。专利申请人对国务院专利行政部门驳回申请的决定不服的,可以自收到通知之日起三个月内,向专利复审委员会请求复审。
专利复审委员会对复审请求进行审查,必要的时候可以对专利申请是否符合本法有关规定的其他情形进行审查,作出决定,并通知专利申请人。
If the patent applicant is dissatisfied with the review decision made by the patent review board, he may take legal action before the people's court within three months from the date of receipt of the notification.
Chapter V Duration, Termination and Invalidation of Patent Rights
第四十二条 发明专利权的期限为二十年,实用新型专利权的期限为十年,外观设计专利权的期限为十五年,均自申请日起算。
第四十三条 专利权人应当自被授予专利权的当年开始缴纳年费。
第四十四条 有下列情形之一的,专利权在期限届满前终止:
(1) failure to pay the annual fee as required; or
(2) the patentee waiving of the patent right by a written declaration;
If a patent right is terminated before the duration expires, the patent administration department under the State Council shall register and announce such termination.
第四十五条 自国务院专利行政部门公告授予专利权之日起,任何单位或者个人认为该专利权的授予不符合本法有关规定的,可以请求专利复审委员会宣告该专利权无效。
第四十六条 专利复审委员会对宣告专利权无效的请求进行审查,必要的时候可以对专利权是否符合本法有关规定的其他情形进行审查,及时作出决定,并通知请求人和专利权人。宣告专利权无效或者维持专利权的决定,由国务院专利行政部门登记和公告。
A person that is dissatisfied with the patent review board's decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people's court, within three months from the date of receipt of the notification. The people's court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party.
第四十七条 宣告无效的专利权视为自始即不存在。
宣告专利权无效的决定,对在宣告专利权无效前人民法院作出并已执行的专利侵权的判决、调解书,已经履行或者强制执行的专利侵权纠纷处理、Punishment决定,以及已经履行的专利实施许可合同和专利权转让合同,不具有追溯力。但是因专利权人的恶意给他人造成的损失,应当给予赔偿。
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 Exploitation of a Patent
第四十八条 有下列情形之一的,国务院专利行政部门根据具备实施条件的单位或者个人的申请,可以给予实施发明专利或者实用新型专利的强制许可:
(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.
第四十九条 在国家出现紧急状态或者非常情况时,或者为了公共利益的目的,国务院专利行政部门可以给予实施发明专利或者实用新型专利的强制许可。
第五十条 为了公共健康目的,对取得专利权的药品,国务院专利行政部门可以给予制造并将其出口到符合中华人民共和国参加的有关国际条约规定的国家或者地区的强制许可。
第五十一条 一项取得专利权的发明或者实用新型比前已经取得专利权的发明或者实用新型具有显著经济意义的重大技术进步,其实施又有赖于前一发明或者实用新型的实施的,国务院专利行政部门根据后一专利权人的申请,可以给予实施前一发明或者实用新型的强制许可。
Under the circumstance where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon application made by the earlier patentee, grant it a compulsory license to exploit the later invention or utility model.
第五十二条 强制许可涉及的发明创造为半导体技术的,其实施限于公共利益的目的和本法第四十八条第(二)项规定的情形。
第五十三条 除依照本法第四十八条第(二)项、第五十条规定给予的强制许可外,强制许可的实施应当主要为了供应国内市场。
第五十四条 依照本法第四十八条第(一)项、第五十一条规定申请强制许可的单位或者个人应当提供证据,证明其以合理的条件请求专利权人许可其实施专利,但未能在合理的时间内获得许可。
第五十五条 国务院专利行政部门作出的给予实施强制许可的决定,应当及时通知专利权人,并予以登记和公告。
In a decision on granting of the compulsory license for exploitation shall, according to the reasons justifying the compulsory license, be specified the scope and duration for exploitation. When such reasons cease to exist and are unlikely to recur, the patent administration department under the State Council shall, upon request by the patentee, make a decision to terminate the compulsory license after examination.
第五十六条 取得实施强制许可的单位或者个人不享有独占的实施权,并且无权允许他人实施。
第五十七条 取得实施强制许可的单位或者个人应当付给专利权人合理的使用费,或者依照中华人民共和国参加的有关国际条约的规定处理使用费问题。付给使用费的,其数额由双方协商;双方不能达成协议的,由国务院专利行政部门裁决。
第五十八条 专利权人对国务院专利行政部门关于实施强制许可的决定不服的,专利权人和取得实施强制许可的单位或者个人对国务院专利行政部门关于实施强制许可的使用费的裁决不服的,可以自收到通知之日起三个月内向人民法院起诉。
Chapter VII Protection of Patent Rights
第五十九条 发明或者实用新型专利权的保护范围以其权利要求的内容为准,说明书及附图可以用于解释权利要求的内容。
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.
第六十条 未经专利权人许可,实施其专利,即侵犯其专利权,引起纠纷的,由当事人协商解决;不愿协商或者协商不成的,专利权人或者利害关系人可以向人民法院起诉,也可以请求专利行政部门处理。专利行政部门处理时,认定侵权行为成立的,可以责令侵权人立即停止侵权行为,当事人不服的,可以自收到处理通知之日起十五日内依照《中华人民共和国行政诉讼法》向人民法院起诉;侵权人期满不起诉又不停止侵权行为的,专利行政部门可以申请人民法院强制执行。
对群体侵权、重复侵权等扰乱市场秩序的故意侵犯专利权行为,专利行政部门可以依法查处,责令侵权人立即停止侵权行为,并可以没收侵权产品、专门用于制造侵权产品或者使用侵权方法的零部件、工具、模具、设备等。对重复侵犯专利权的行为,专利行政部门可以处以罚款,非法经营额五万元以上的,可以处非法经营额一倍以上五倍以下的罚款;没有非法经营额或者非法经营额五万元以下的,可以处二十五万元以下的罚款。
第六十一条(新增) 处理专利侵权纠纷的专利行政部门,应当事人的请求,可以就侵犯专利权的赔偿数额进行调解;调解不成的,当事人可以依照《中华人民共和国民事诉讼法》向人民法院起诉。调解协议达成后,一方当事人拒绝履行或者未全部履行的, 对方当事人可以申请人民法院确认并强制执行。
第六十二条(新增) 明知有关产品系专门用于实施专利的原材料、中间物、零部件、设备,未经专利权人许可,为生产经营目的将该产品提供给他人实施了侵犯专利权的行为的,应当与侵权人承担连带责任。
Those clearly knowing that a product or method is patented but entice others to perform acts infringing the patent without the patentees permission and for production or business purposes, shall bear joint liability with the infringer.
第六十三条(新增) 网络服务提供者知道或者应当知道网络用户利用其提供的网络服务侵犯专利权或者假冒专利,未及时采取删除、屏蔽、断开侵权产品链接等必要措施予以制止的,应当与该网络用户承担连带责任。
Where the patentee or an interested party has evidence showing that a network user used a network service to infringe or counterfeit their patent, they may notify the network service provide to adopt the necessary measures to stop it described in the preceding paragraph. Where the network service provider does not promptly adopt necessary measures after receiving effective notice, it bears liability for the expansion of the harm and joint liability with that network user.
Where the patent administration department determines that a network user has exploited network services to infringe patent right or counterfeit patents, it shall notify the network service providers to adopt the necessary measures to stop it as described in the first paragraph of this article, and where the network service providers do not promptly employ the necessary measures, they are liable for the expanded harms and bear joint liability with the network user.
第六十四条 专利侵权纠纷涉及新产品制造方法的发明专利的,制造同样产品的单位或个人应当提供其产品制造方法不同于专利方法的证明。
专利侵权纠纷涉及实用新型专利或者外观设计专利的,人民法院或者专利行政部门可以要求专利权人或者利害关系人出具由国务院专利行政部门对相关实用新型或者外观设计进行检索、分析和评价后作出的专利权评价报告,作为审理、处理专利侵权纠纷的证据。双方当事人均可以主动出具上述专利权评价报告.
第六十五条 在专利侵权纠纷中,被控侵权人有证据证明其实施的技术或者设计属于现有技术或者现有设计的,不构成侵犯专利权。
第六十六条 假冒专利的,除依法承担民事责任外,由专利行政部门责令改正并予公告。非法经营额五万元以上的,可以处非法经营额一倍以上五倍以下的罚款;没有非法经营额或者非法经营额五万元以下的,可以处二十五万元以下的罚款;Where a crime is constituted, criminal responsibility is to be pursued in accordance with law.
Article 67: 专利行政部门根据已经取得的证据,对涉嫌侵犯专利权行为或者假冒专利行为进行处理或者查处时,可以询问有关当事人,调查与涉嫌违法行为有关的情况;对当事人涉嫌违法行为的场所实施现场检查;查阅、复制与涉嫌违法行为有关的合同、发票、账簿以及其他有关资料;检查与涉嫌违法行为有关的产品,对有证据证明是扰乱市场秩序的故意侵犯专利权的产品或者假冒专利的产品,可以查封或者扣押。
专利行政部门依法行使前款规定的职权时,当事人应当予以协助、配合。当事人拒绝、阻挠专利行政部门行使职权的,由专利行政部门予以警告;构成违反治安管理行为的,由公安机关依法给予处罚;构成犯罪的,依法追究刑事责任。
第六十八条 侵犯专利权的赔偿数额按照权利人因被侵权所受到的实际损失确定;实际损失难以确定的,可以按照侵权人因侵权所获得的利益确定。权利人的损失或者侵权人获得的利益难以确定的,参照该专利许可使用费的倍数合理确定。对于故意侵犯专利权的行为,人民法院可以根据侵权行为的情节、规模、损害后果等因素,在按照上述方法确定数额的一倍以上三倍以下确定赔偿数额。The amount of compensation shall also include reasonable expenses paid by the rights holder in stopping the infringement.
权利人的损失、侵权人获得的利益和专利许可使用费均难以确定的,人民法院可以根据专利权的类型、侵权行为的性质和情节等因素,确定给予十万元以上五百万元以下的赔偿。
After establishing a violation of patent rights, to determine the amount of compensation in situations where the patentee has already produced evidence to the extent possible and the books and materials related to the infringement are primarily in the hands of the infringer, people's courts may order the infringer to provide books and materials relevant to the infringing conduct; if the infringer does not so provide, or provides false books and materials, the people's courts can determine the amount of compensation from consideration of the patentee's desire and the evidence they have provided.
第六十九条 专利权人或者利害关系人有证据证明他人正在实施或者即将实施侵犯专利权的行为,如不及时制止将会使其合法权益受到难以弥补的损害的,可以在起诉前向人民法院申请采取责令停止有关行为的措施。
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.
第七十条 为了制止专利侵权行为,在证据可能灭失或者以后难以取得的情况下,专利权人或者利害关系人可以在起诉前向人民法院申请保全证据。
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.
第七十一条 侵犯专利权的诉讼时效为二年,自专利权人或者利害关系人得知或者应当得知侵权行为之日起计算。
If an appropriate royalty is not paid for using an invention during the period from the publication of the invention patent application to the grant of the patent right, the period of limitation for taking legal action by the patentee for requesting payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by another person. However, the period of limitation for action shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted.
第七十二条 有下列情形之一的,不视为侵犯专利权:
(1) 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;
(2) Before the date of patent application, any other person has already manufactured identical products, used identical method or has made necessary preparations for the manufacture or use and continues to manufacture the products or use the method within the original scope;
(3) With respect to any foreign means of transportation that temporarily passes through the territory, territorial waters, or territorial airspace of China, the relevant patent is used in the devices and installations for its own needs, in accordance with the agreement concluded between the country it belong to and China, or in accordance with any international treaty to which both countries have acceded, or on the principle of mutual benefit;
(4) Any person uses the relevant patent specially for the purpose of scientific research and experimentation; and
(5) 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.
第七十三条 为生产经营目的使用、许诺销售或者销售不知道是未经专利权人许可而制造并售出的专利侵权产品,能证明该产品合法来源的,不承担赔偿责任。
第七十四条(新增) 专利行政部门应当建立专利权保护信用信息档案,并纳入全国信用信息共享交换平台。
Article 75 (Newly Added) The establishment of a patent agency or to obtainment of patent agent credentials must be upon approval of the patent administration department under the State Council
Units and individuals must not engage in operations as patent agents for business purposes without the permission of the patent administration office under the State Council. If this provision is violated, the patent administration department will order the unlawful conduct stopped, confiscate unlawful gains, and may give a concurrent fine.
第七十六条 违反本法第二十条规定向外国申请专利,泄露国家秘密的,由所在单位或者上级主管机关给予处分;构成犯罪的,依法追究刑事责任。
Article 77: 专利行政部门不得参与向社会推荐专利产品等经营活动。
专利行政部门违反前款规定的,由其上级机关或者监察机关责令改正,消除影响,有违法收入的予以没收;情节严重的,对直接负责的主管人员和其他直接责任人员依法给予处分.
第七十八条 从事专利管理工作的国家机关工作人员以及其他有关国家机关工作人员玩忽职守、滥用职权、徇私舞弊的,依法给予处分;构成犯罪的,依法追究刑事责任.
第八章 专利的实施和运用(新增)
Article 79 (Newly Added) Patent administration departments at all levels shall promote the implementation and application, encouraging and regulating the marketization of patent information and patent application activities.
第八十条(原第十四条) 国有企业事业单位的发明专利,对国家利益或者公共利益具有重大意义的,国务院有关主管部门和省、自治区、直辖市人民政府报经国务院批准,可以决定在批准的范围内推广应用,允许指定的单位实施,由实施单位按照国家规定向专利权人支付使用费。
第八十一条(新增) 国家设立的研究开发机构、高等院校自职务发明创造获得专利权之后,在不变更专利权属的前提下,发明人或者设计人可以与单位协商自行实施或者许可他人实施该专利,并按照协议享有相应的权益。
第八十二条(新增) 专利权人以书面方式向国务院专利行政部门声明其愿意许可任何人实施其专利,并明确许可使用费的,由国务院专利行政部门予以公告,实行当然许可。
Declarations on licenses of right for utility or design patents, shall provide a patent rights assessment report.
Withdrawal of declarations for licenses of right shall be submitted in writing and be publicly announced by the patent administration department under the State Council. If licence of right declarations are withdrawn, it does not impact the validity of licenses of right previously given.
第八十三条(新增) 任何人有意愿实施当然许可的专利的,为获得当然许可,应当以书面方式通知专利权人,并支付许可使用费。
The licensee under a license of right may make a record with the patent administration department under the State Council as proof of obtaining the license of right.
During the period of the license of right, the patentee must not sole or exclusive licenses to the patent, or request pre-trial temporary injunctions.
第八十四条(新增) 当事人就当然许可发生纠纷的,可以请求国务院专利行政部门裁决。当事人对裁决不服的,可以自收到通知之日起十五日内向人民法院起诉。
第八十五条(新增) 参与国家标准制定的专利权人在标准制定过程中不披露其拥有的标准必要专利的,视为其许可该标准的实施者使用其专利技术。许可使用费由双方协商;双方不能达成协议的,可以请求国务院专利行政部门裁决。当事人对裁决不服的,可以自收到通知之日起十五日内向人民法院起诉。
第八十六条(新增) 以专利权出质的,由出质人和质权人共同向国务院专利行政部门办理出质登记,质权自登记之日起生效。
Chapter IX: Supplemental Provisions
第八十七条 向国务院专利行政部门申请专利和办理其他手续,应当按照规定缴纳费用。
Article 88 (Newly Added): Patent agency industry organizations shall accept the guidance and supervision of the patent administrative departments.
Patent agency industry organizations shall follow provisions of their charter to strictly enforce requirements for accepting members and punish members for violations of industry self-discipline standard; acceptance members and punishments of members shall be promptly reported to the public.
第八十九条 本法自1985年4月1日起施行。
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Currently Effective Patent Law | Draft Patent Law Revisions (Deliberation Draft) |
Chapter I: General Provisions | Chapter I: General Provisions |
Article 1: 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. | Article 1: 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. |
Article 2: For the purposes of this Law, invention-creations mean inventions, utility models and designs. 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. | Article 2: For the purposes of this Law, invention-creations mean inventions, utility models and designs. 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 an overall product or its parts, 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. |
Article 3: The Patent Administration Department under the State Council shall be responsible for the administration of patent-related work nationwide. It shall accept and examine patent applications in a uniform way and grant patent rights in accordance with law. The departments in charge of patent-related work of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas. | Article 3: The Patent Administration Department under the State Council shall be responsible for the administration of patent-related work nationwide, shall accept and examine patent applications in a uniform way and grant patent rights in accordance with law, is responsible for market management and supervision related to patents, inspects patent infringement and patent fraud actions with major impact, establishes a public service system for patent information, and promotes the use and transmission of patent information. Local people's governments' patent administration departments are responsible for patent work within their administrative areas, carrying out patent administrative enforcement in accordance with law and providing public patent services. Local patent administration departments as used in the preceding paragraph refers to patent administration departments of people's governments at the provincial level, districted municipality level, as well as county when authorized by laws or regulations. |
Article 4: Where an invention-creation for the patent of which an application is filed involves national security or other major interests of the State and confidentiality needs to be maintained, the application shall be handled in accordance with the relevant regulations of the State. | Article 4: Where an invention-creation for the patent of which an application is filed involves national security or other major interests of the State and confidentiality needs to be maintained, the application shall be handled in accordance with the relevant regulations of the State. |
Article 5: 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. | Article 5: 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. |
Article 6: An invention-creation that is accomplished in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer shall be deemed an employment invention-creation. For an employment invention-creation, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee. For a non-employment invention-creation, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee. For an invention-creation that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail. | Article 6: An invention-creation that is accomplished in the course of performing the duties of an employee shall be deemed an employment invention-creation. For an employment invention-creation, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee. For a non-employment invention-creation, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee. For an invention-creation that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail; if there is no contract, the ownership of the right to apply for the patent is with the inventor or designer. |
Article 7: No unit or individual shall prevent the inventor or designer from filing a patent application for a non-employment invention. | Article 7: No unit or individual shall prevent the inventor or designer from filing a patent application for a non-employment invention. |
Article 8: With regard to an invention-creation accomplished by two or more units or individuals in collaboration, or an invention-creation accomplished by an unit or individual under the entrustment of another unit or individual, the right to apply for a patent shall be vested in the units or individuals that have accomplished the invention-creation in collaboration or in the unit or individual that has done so under entrustment, unless it is otherwise agreed upon. After the application is granted, the applying units or individuals shall be deemed the patentees. | Article 8: With regard to an invention-creation accomplished by two or more units or individuals in collaboration, or an invention-creation accomplished by an unit or individual under the entrustment of another unit or individual, the right to apply for a patent shall be vested in the units or individuals that have accomplished the invention-creation in collaboration or in the unit or individual that has done so under entrustment, unless it is otherwise agreed upon. After the application is granted, the applying units or individuals shall be deemed the patentees. |
Article 9: 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. If two or more applicants apply for a patent for the same invention separately, the patent right shall be granted to the first applicant. | Article 9: 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. If two or more applicants apply for a patent for the same invention separately, the patent right shall be granted to the first applicant. |
Article 10: The right to apply for a patent and patent rights may be transferred. 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. For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the patent administration department under the State Council, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date. | Article 10: The right to apply for a patent and patent rights may be transferred. 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. For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the patent administration department under the State Council, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date. |
Article 11: After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, 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, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method. 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. | Article 11: After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, 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, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method. 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. |
Article 12: 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. | Article 12: 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. |
Article 13: After the application for an invention patent is published, the applicant may require the unit or individual that exploits the said patent to pay an appropriate amount of royalties. | Article 13: After the application for an invention patent is published, the applicant may require the unit or individual that exploits the said patent to pay an appropriate amount of royalties. |
Article 14: If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people's government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State. | Article 14: (Newly Added, Original Text Moved to Article 80) Applications for patents and the exercise of patent rights shall follow the principle of good faith. Patent rights must not be abused to harm the public interest or to unreasonably exclude or limit competition.
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Article 15: 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. | Article 15: 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. |
Article 16: The unit that is granted the patent right shall reward the inventor or designer of an employment invention-creation. After such patent is exploited, the inventor or designer shall be given a reasonable amount of remuneration according to the scope of application and the economic results. | Article 16: After employment invention-creation patent rights are granted, a unit shall reward its inventor or designer. After such patent is applied, the unit shall give a reasonable amount of remuneration to the inventor or designer according to the scope of application and the economic results. If the unit and inventor or designer have contracted, in accordance with paragraph 4 of article 6 of this law, that the the right to apply for an invention-creation patent belongs to the unit, the unit shall follow the preceeding paragraph to reward and compensate the inventor or designer. |
Article 17: 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. | Article 17: 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. |
Article 18: Where a foreigner, foreign enterprise or other foreign organization without a regular residence or business site in China applies for a patent in China, the application shall be handled in accordance with the agreements concluded by the country he or it belongs to and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity. | Article 18: Where a foreigner, foreign enterprise or other foreign organization without a regular residence or business site in China applies for a patent in China, the application shall be handled in accordance with the agreements concluded by the country he or it belongs to and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity. |
Article 19: 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. 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. A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies shall be formulated by the State Council. | Article 19: 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 follow provisions to entrust a legally established patent agency with the application and such matters. 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. A patent agency and its patent agents shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies and their patent agents shall be formulated by the State Council. |
Article 20: 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. A Chinese unit or individual may file for international patent applications in accordance with the relevant international treaties to which China has acceded. The applicant for such patent shall comply with the provisions of the preceding paragraph. The patent administration department under the State Council shall handle international applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council. 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. | Article 20: 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. A Chinese unit or individual may file for international patent applications and receive corresponding protections in accordance with the relevant international treaties to which China has acceded. Applicants submitting international patent applications shall comply with the provisions of the preceding paragraph. The patent administration department under the State Council shall handle international applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council. 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. |
Article 21: The patent administration department under the State Council and its Patent Review Board shall, according to the requirements of objectivity, fairness, accuracy and timeliness, handle patent applications and requests in accordance with law. 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. Before a patent application is published or announced, the staff members of the patent administration department under the State Council and the persons concerned shall be obligated to keep such application confidential. | Article 21: The patent administration department under the State Council and its Patent Review Board shall, according to the requirements of objectivity, fairness, accuracy and timeliness, handle patent applications and requests in accordance with law. The patent administration department under the State Council shall release patent-related information in a complete, accurate and timely manner, publish patent gazettes on a regular basis, and provide basic data on patent information. Before a patent application is published or announced, the staff members of the patent administration department under the State Council and the persons concerned shall be obligated to keep such application confidential. |
Chapter II Conditions for Granting Patent Rights | Chapter II Conditions for Granting Patent Rights |
Article 22: Inventions and utility models for which patent rights are to be granted shall be ones which are novel, creative and of practical use. 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. 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. Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results. For the purposes of this Law, existing technologies mean the technologies known to the public both domestically and abroad before the date of application. | Article 22: Inventions and utility models for which patent rights are to be granted shall be ones which are novel, creative and of practical use. 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. 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. Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results. For the purposes of this Law, existing technologies mean the technologies known to the public both domestically and abroad before the date of application. |
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. 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. | 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. 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. |
Article 24: Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances: (1) It is 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 specified academic or technological conference; and (3) Its contents are divulged by others without the consent of the applicant. | Article 24: Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances: (1) It is 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 specified academic or technological conference; and (3) Its contents are divulged by others without the consent of the applicant. |
Article 25: Article 25 Patent rights shall not be granted for any of the following: (1) scientific discoveries; (2) rules and methods for intellectual activities; (3)methods for the diagnosis or treatment of diseases; (4) animal or plant varieties; (5) substances obtained by means of nuclear transformation; and (6) designs that are mainly used for marking the pattern, color or the combination of the two of prints. The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph. | Article 25: Article 25 Patent rights shall not be granted for any of the following: (1) scientific discoveries; (2) rules and methods for intellectual activities; (3)methods for the diagnosis or treatment of diseases; (4) animal or plant varieties; (5) nuclear transformation methods and substances obtained by means of nuclear transformation (6) designs that are mainly used for marking the pattern, color or the combination of the two of prints. The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph. |
Chapter III Patent Application | Chapter III Patent Application |
Article 26: When a person intends to apply for an invention or utility model patent, he shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim. 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 written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model. The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection. 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. | Article 26: When a person intends to apply for an invention or utility model patent, he shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim. 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 written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model. The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection. 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. |
Article 27: 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. | Article 27: 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. |
Article 28: The date when the patent administration department under the State Council receives the patent application documents is the date of application. If the application documents are delivered by post, the date of the postmark is the date of application. | Article 28: The date when the patent administration department under the State Council receives the patent application documents is the date of application. If the application documents are delivered by post, the date of the postmark is the date of application. |
Article 29: If, within twelve months from the date the applicant first files an application for an invention or utility model patent in a foreign country, or within six months from the date the applicant first files an application for a design patent in a foreign country, he files an application for a patent in China for the same subject matter, he may enjoy the right of priority in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the principle of mutual recognition of the right of priority. If, within twelve months form the date the applicant first files an application for an invention or utility model patent in China, he files an application for a patent with the patent administration department under the State Council for the same subject matter, the applicant may enjoy the right of priority. | Article 29: If, within twelve months from the date the applicant first files an application for an invention or utility model patent in a foreign country, or within six months from the date the applicant first files an application for a design patent in a foreign country, he files an application for a patent in China for the same subject matter, he may enjoy the right of priority in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the principle of mutual recognition of the right of priority. If, within twelve months form the date the applicant first files an application for an invention or utility model patent in China, or within six months from the date on which the applicant first files an application for a design patent in China, and also submits an application for a patent to the patent administration department under the State Council for the same subject matter, the applicant may enjoy the right of priority. |
Article 30: An applicant who requests the right of priority shall submit a written declaration at the time of application and submit, within three months, duplicates of the patent application documents filed for the first time. Where no written declaration is submitted or no duplicates of the patent application documents are submitted at the expiration of the specified time limit, the applicant shall be deemed to have waived the right of priority. | Article 30: An applicant who requests the right of priority shall follow procedures to submit a written declaration at the time of application and provide duplicates of the patent application documents filed for the first time. Where provisions are not followed to submit a written declaration or no duplicates of the patent application documents are provided at the expiration of the specified time limit, the applicant shall be deemed to have waived the right of priority. |
Article 31: An application for an invention patent or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models embodied in a single general invention concept may be handled with one application. 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. | Article 31: An application for an invention patent or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models embodied in a single general invention concept may be handled with one application. 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. |
Article 32: An applicant may withdraw his patent application anytime before being granted the patent right. | Article 32: An applicant may withdraw his patent application anytime before being granted the patent right. |
Article 33: An applicant may amend his patent application documents, provided that the amendment to the invention or utility model patent application documents does not exceed the scope specified in the original written descriptions and claims, or that the amendment to the design patent application documents does not exceed the scope shown in the original drawings or pictures. | Article 33: An applicant may amend his patent application documents, provided that the amendment to the invention or utility model patent application documents does not exceed the scope specified in the original written descriptions and claims, or that the amendment to the design patent application documents does not exceed the scope shown in the original drawings or pictures. |
Chapter IV Examination and Approval of Patent Applications | Chapter IV Examination and Approval of Patent Applications |
Article 34: Upon receipt of an invention patent application, if the patent administration department under the State Council, after preliminary examination, confirms that the application meets the requirements of this Law, it shall publish the application within 18 full months from the date of application. And it may do so at an earlier date upon request of the applicant. | Article 34: Upon receipt of an invention patent application, if the patent administration department under the State Council, after preliminary examination, confirms that the application meets the requirements of this Law, it shall publish the application within 18 full months from the date of application. And it may do so at an earlier date upon request of the applicant. |
Article 35: Within three years from the date an invention patent application is filed, the patent administration department under the State Council may, upon request made by the applicant at any time, carry out substantive examination of the application. If the applicant, without legitimate reasons, fails to request substantive examination at the expiration of the time limit, such application shall be deemed to have been withdrawn. The patent administration department under the State Council may carry out substantive examination of its own accord, as it deems it necessary. | Article 35: Within three years from the date an invention patent application is filed, the patent administration department under the State Council may, upon request made by the applicant at any time, carry out substantive examination of the application. If the applicant, without legitimate reasons, fails to request substantive examination at the expiration of the time limit, such application shall be deemed to have been withdrawn. The patent administration department under the State Council may carry out substantive examination of its own accord, as it deems it necessary. |
Article 36: When an applicant for an invention patent requests substantive examination, he shall submit the reference materials relating to the invention existing prior to the date of application. If an application has been filed for an invention patent in a foreign country, the patent administration department under the State Council may require the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or materials concerning the results of any examination made in the country. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn. | Article 36: When an applicant for an invention patent requests substantive examination, he shall submit the reference materials relating to the invention existing prior to the date of application. If an application has been filed for an invention patent in a foreign country, the patent administration department under the State Council may require the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or materials concerning the results of any examination made in the country. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn. |
Article 37: After the patent administration department under the State Council has made the substantive examination of the invention patent application, if it finds that the application does not conform to the provisions of this Law, it shall notify the applicant of the need to state its opinions within a specified time limit or to make amendment to the application. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn. | Article 37: After the patent administration department under the State Council has made the substantive examination of the invention patent application, if it finds that the application does not conform to the provisions of this Law, it shall notify the applicant of the need to state its opinions within a specified time limit or to make amendment to the application. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn. |
Article 38: After the applicant states his opinions on or makes amendment to the invention patent application, if the patent administration department under the State Council still believes the application does not conform to the provisions of this Law, it shall reject the application. | Article 38: After the applicant states his opinions on or makes amendment to the invention patent application, if the patent administration department under the State Council still believes the application does not conform to the provisions of this Law, it shall reject the application. |
Article 39: If no reason for rejection is discerned after an invention patent application is substantively examined, the patent administration department under the State Council shall make a decision on granting of the invention patent right, issue an invention patent certificate, and meanwhile register and announce the same. The invention patent right shall become effective as of the date of announcement. | Article 39: If no reason for rejection is discerned after an invention patent application is substantively examined, the patent administration department under the State Council shall make a decision on granting of the invention patent right, issue an invention patent certificate, and meanwhile register and announce the same. The invention patent right shall become effective as of the date of announcement. |
Article 40: If no reason for rejection is discerned after preliminary examination of a utility model or design patent application, the patent administration department under the State Council shall make a decision on granting of the utility model or design patent right, issue a corresponding patent certificate, and meanwhile register and announce the same. The utility model patent right and the design patent right shall become effective as of the date of announcement. | Article 40: If no reason for rejection is discerned after preliminary examination of a utility model or design patent application, the patent administration department under the State Council shall make a decision on granting of the utility model or design patent right, issue a corresponding patent certificate, and meanwhile register and announce the same. The utility model patent right and the design patent right shall become effective as of the date of announcement. |
Article 41: The patent administration department under the State Council shall establish a patent review board. If a patent applicant is dissatisfied with the decision made by the Patent Administration Department under the State Council on rejecting of the application, he may, within three months from the date of receipt of the notification, file a request with the patent review board for review. After review, the Patent Review Board shall make a decision and notify the patent applicant of the same. If the patent applicant is dissatisfied with the review decision made by the patent review board, he may take legal action before the people's court within three months from the date of receipt of the notification. | Article 41: The patent administration department under the State Council shall establish a patent review board. If a patent applicant is dissatisfied with the decision made by the Patent Administration Department under the State Council on rejecting of the application, he may, within three months from the date of receipt of the notification, file a request with the patent review board for review. The patent review board reviews requests to conduct an examination, and when necessary may conduct an examination of other circumstances regargding whether the patent application meets the requirements of the relevant provisions of this law, make a decision and notify the applicant. If the patent applicant is dissatisfied with the review decision made by the patent review board, he may take legal action before the people's court within three months from the date of receipt of the notification. |
Chapter V Duration, Termination and Invalidation of Patent Rights | Chapter V Duration, Termination and Invalidation of Patent Rights |
Article 42: The duration of the invention patent right shall be 20 years and that of the utility model patent right and of the design patent right shall be ten years respectively, all commencing from the date of application. | Article 42: The duration of the invention patent right shall be 20 years, that of the utility model patent right shall be be 10 years, and that of the design patent shall be 15 years., all commencing from the date of application. |
Article 43: The patentee shall pay annual fees commencing from the year when the patent right is granted. | Article 43: The patentee shall pay annual fees commencing from the year when the patent right is granted. |
Article 44: Under any of the following circumstances, the patent right shall be terminated before the expiration of the duration: (1) failure to pay the annual fee as required; or (2) the patentee waiving of the patent right by a written declaration; If a patent right is terminated before the duration expires, the patent administration department under the State Council shall register and announce such termination. | Article 44: Under any of the following circumstances, the patent right shall be terminated before the expiration of the duration: (1) failure to pay the annual fee as required; or (2) the patentee waiving of the patent right by a written declaration; If a patent right is terminated before the duration expires, the patent administration department under the State Council shall register and announce such termination. |
Article 45: Beginning from the date the patent administration department under the State Council announces the grant of a patent right, if a unit or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent review board declare the said patent right invalid. | Article 45: Beginning from the date the patent administration department under the State Council announces the grant of a patent right, if a unit or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent review board declare the said patent right invalid. |
Article 46: The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the patent administration department under the State Council. A person that is dissatisfied with the patent review board's decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people's court, within three months from the date of receipt of the notification. The people's court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party. | Article 46: The patent review board shall conduct an examination of the request for declaring a patent right invalid, and when necessary may also conduct an examination of other circumstances concerning whether the patent right complies with relevant provisions of this law, and make a decision in a timely manner and notify the requesting person and the patentee of its decision. Decisions declaring a patent right invalid or sustaining a patent right shall be registered and announced by the patent administration department under the State Council. A person that is dissatisfied with the patent review board's decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people's court, within three months from the date of receipt of the notification. The people's court shall notify the opposite party in the invalidation 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. | 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 or punishment in 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 Exploitation of a Patent | Chapter VI Compulsory License for Exploitation of a Patent |
Article 48: 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. | Article 48: 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. |
Article 49: Where a national emergency or any extraordinary state of affairs occurs, or public interests so require, the patent administration department under the State Council may grant a compulsory license for exploitation of an invention patent or utility model patent. | Article 49: Where a national emergency or any extraordinary state of affairs occurs, or public interests so require, the patent administration department under the State Council may grant a compulsory license for exploitation of an invention patent or utility model patent. |
Article 50: 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. | Article 50: 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. |
Article 51: If an invention or utility model, for which the patent right has been obtained, represents a major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of the former relies on exploitation of the latter, the patent administration department under the State Council may, upon application made by the latter, grant it a compulsory license to exploit the earlier invention or utility model. Under the circumstance where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon application made by the earlier patentee, grant it a compulsory license to exploit the later invention or utility model. | Article 51: If an invention or utility model, for which the patent right has been obtained, represents a major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of the former relies on exploitation of the latter, the patent administration department under the State Council may, upon application made by the latter, grant it a compulsory license to exploit the earlier invention or utility model. Under the circumstance where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon application made by the earlier patentee, grant it a compulsory license to exploit the later invention or utility model. |
Article 52: 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. | Article 52: 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. |
Article 53: 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. | Article 53: 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. |
Article 54: 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. | Article 54: 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. |
Article 55: The decision made by the patent administration department under the State Council on granting of a compulsory license for exploitation shall be notified to the patentee in a timely manner and shall be registered and announced. In a decision on granting of the compulsory license for exploitation shall, according to the reasons justifying the compulsory license, be specified the scope and duration for exploitation. When such reasons cease to exist and are unlikely to recur, the patent administration department under the State Council shall, upon request by the patentee, make a decision to terminate the compulsory license after examination. | Article 55: The decision made by the patent administration department under the State Council on granting of a compulsory license for exploitation shall be notified to the patentee in a timely manner and shall be registered and announced. In a decision on granting of the compulsory license for exploitation shall, according to the reasons justifying the compulsory license, be specified the scope and duration for exploitation. When such reasons cease to exist and are unlikely to recur, the patent administration department under the State Council shall, upon request by the patentee, make a decision to terminate the compulsory license after examination. |
Article 56: Any unit or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploitation and shall not have the right to allow exploitation by others. | Article 56: Any unit or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploitation and shall not have the right to allow exploitation by others. |
Article 57: 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. | Article 57: 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. |
Article 58: If a patentee is dissatisfied with the decision made by the patent administration department under the State Council -on granting of the compulsory license for exploitation, or if the patentee, or the unit or individual that has obtained the compulsory license for exploitation is dissatisfied with the ruling made by the patent administration department under the State Council regarding the royalties for the compulsorily licensed exploitation, it or he may take legal action before the people's court within three months from the date of receipt of the notification of the ruling. | Article 58: If a patentee is dissatisfied with the decision made by the patent administration department under the State Council -on granting of the compulsory license for exploitation, or if the patentee, or the unit or individual that has obtained the compulsory license for exploitation is dissatisfied with the ruling made by the patent administration department under the State Council regarding the royalties for the compulsorily licensed exploitation, it or he may take legal action before the people's court within three months from the date of receipt of the notification of the ruling. |
Chapter VII Protection of Patent Rights | Chapter VII Protection of Patent Rights |
Article 59: 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. | Article 59: 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. |
Article 60: If a dispute arises as a result of exploitation of a patent without permission of the patentee, that is, the patent right of the patentee is infringed, the dispute shall be settled through consultation between the parties. If the parties are not willing to consult or if consultation fails, the patentee or interested party may take legal action before a people's court, and may also request the administration department for patent-related work to handle the dispute. If, when handling the dispute, the said department believes the infringement is established, it may order the infringer to cease the infringement immediately; if the infringer is dissatisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, take legal action before a people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If the infringer neither takes legal action at the expiration of the time limit nor ceases the infringement, the said department may file an application with the people's court for compulsory enforcement. The administration department for patent-related work that handles the call shall, upon request of the parties, carry out mediation concerning the amount of compensation for the patent right infringement. If mediation fails, the parties may take legal action before the people's court in accordance with the Civil Procedure Law of the People's Republic of China. | Article 60: If a dispute arises as a result of exploitation of a patent without permission of the patentee, that is, the patent right of the patentee is infringed, the dispute shall be settled through consultation between the parties. If the parties are not willing to consult or if consultation fails, the patentee or interested party may take legal action before a people's court, and may also request the patent administration department to handle the dispute. If, when handling the dispute, the said department believes the infringement is established, it may order the infringer to cease the infringement immediately; if the infringer is dissatisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, take legal action before a people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If the infringer neither takes legal action at the expiration of the time limit nor ceases the infringement, the said department may file an application with the people's court for compulsory enforcement. The patent administration department that handles the call shall, upon request of the parties, carry out mediation concerning the amount of compensation for the patent right infringement. If mediation fails, the parties may take legal action before the people's court in accordance with the Civil Procedure Law of the People's Republic of China. 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. |
Article 61 (Newly Added) Patent administrative departments handling patent infringement disputes, at the request of the parties, may conduct mediation on the amount of compensation for patent infringement; if mediation fails, the parties may sue in the people's court in accordance with the "People's Republic of China Civil Procedure Law." If after a mediation agreement is established, one party refuses to perform or does not fully perform, the other party may apply to court to confirm and compel enforcement. | |
Article 62 (Newly Added): Those who clearly know that a product line is devoted to the raw materials, intermediates, components or equipment, for implementing the patent, and providing the product to others to carry out acts that infringe on the patent, without the authorization of the patentee and for production and business purposes, shall bear joint liability with the infringer. Those clearly knowing that a product or method is patented but entice others to perform acts infringing the patent without the patentees permission and for production or business purposes, shall bear joint liability with the infringer. | |
Article 63 (Newly Added) Where network service provides know or should know that users are exploiting the network services they provide to violate patent rights or counterfeit patents, and do not promptly adopt necessary measures to stop it, such as deleting, blocking or breaking links to infringing products, they shall bear joint liability with the network users. Where the patentee or an interested party has evidence showing that a network user used a network service to infringe or counterfeit their patent, they may notify the network service provide to adopt the necessary measures to stop it described in the preceding paragraph. Where the network service provider does not promptly adopt necessary measures after receiving effective notice, it bears liability for the expansion of the harm and joint liability with that network user. Where the patent administration department determines that a network user has exploited network services to infringe patent right or counterfeit patents, it shall notify the network service providers to adopt the necessary measures to stop it as described in the first paragraph of this article, and where the network service providers do not promptly employ the necessary measures, they are liable for the expanded harms and bear joint liability with the network user. | |
Article 61: 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. | Article 64: 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 patent administration department 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. The parties of either side may actively issue the patent right assessment report described above. |
Article 62: 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. | Article 65: 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. |
Article 63: 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. | Article 66: A person who counterfeits the patent of another person shall, in addition to bearing civil liabilities in accordance with law, be ordered by the patent administration department to put it right, and the department shall make the matter known to the public. If proceeds from the illegal business exceed 50,000 rmb, a fine of between 1-5 times the amount of the proceeds may be imposed; if there are no proceeds from illegal business, or they are less than 50,000 rmb, a fine of 250,000 rmb may be give; and if a crime is constituted, criminal responsibility shall be pursued in accordance with law. |
Article 64: 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. | Article 67: disrupting market order. When the patent administration department performs its duties as prescribed in the preceding paragraph, the parties concerned shall provide assistance and cooperation, If parties refuse or obstruct the patent administration office in performing its duties, the department will give a warning; where it constitutes a violation of public security management administration, the public security organ shall give a penalty in accordance with law; where a crime is constituted, criminal responsibility is pursued in accordance with law. |
Article 65: 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. | Article 68: 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. For intentional violations of patents, the people's courts may, on the basis of the factors such as circumstances, form, and harmful consequences of infringement, give a fine of between 1-3 times the amount determined by the method described above. 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 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 100,000 yuan to 5,000,000 yuan. After establishing a violation of patent rights, to determine the amount of compensation in situations where the patentee has already produced evidence to the extent possible and the books and materials related to the infringement are primarily in the hands of the infringer, people's courts may order the infringer to provide books and materials relevant to the infringing conduct; if the infringer does not so provide, or provides false books and materials, the people's courts can determine the amount of compensation from consideration of the patentee's desire and the evidence they have provided. |
Article 66: 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. | Article 69: 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. |
Article 67: 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. | Article 70: 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. |
Article 68: The period of limitation for action against patent right infringement shall be two years, commencing from the date when the patentee or interested party knows or should have known of the infringement. If an appropriate royalty is not paid for using an invention during the period from the publication of the invention patent application to the grant of the patent right, the period of limitation for taking legal action by the patentee for requesting payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by another person. However, the period of limitation for action shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted. | Article 71: The period of limitation for action against patent right infringement shall be two years, commencing from the date when the patentee or interested party knows or should have known of the infringement. If an appropriate royalty is not paid for using an invention during the period from the publication of the invention patent application to the grant of the patent right, the period of limitation for taking legal action by the patentee for requesting payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by another person. However, the period of limitation for action shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted. |
Article 69: The following shall not be deemed to be patent right infringement: (1) 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; (2) Before the date of patent application, any other person has already manufactured identical products, used identical method or has made necessary preparations for the manufacture or use and continues to manufacture the products or use the method within the original scope; (3) With respect to any foreign means of transportation that temporarily passes through the territory, territorial waters, or territorial airspace of China, the relevant patent is used in the devices and installations for its own needs, in accordance with the agreement concluded between the country it belong to and China, or in accordance with any international treaty to which both countries have acceded, or on the principle of mutual benefit; (4) Any person uses the relevant patent specially for the purpose of scientific research and experimentation; and (5) 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. | Article 72: The following shall not be deemed to be patent right infringement: (1) 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; (2) Before the date of patent application, any other person has already manufactured identical products, used identical method or has made necessary preparations for the manufacture or use and continues to manufacture the products or use the method within the original scope; (3) With respect to any foreign means of transportation that temporarily passes through the territory, territorial waters, or territorial airspace of China, the relevant patent is used in the devices and installations for its own needs, in accordance with the agreement concluded between the country it belong to and China, or in accordance with any international treaty to which both countries have acceded, or on the principle of mutual benefit; (4) Any person uses the relevant patent specially for the purpose of scientific research and experimentation; and (5) 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. |
Article 70: 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. | Article 73: 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. |
Article 74 (Newly Added) Patent administration departments shall establish a patent protection credit information archive, and incorporated it for sharing into the national credit information sharing platform. | |
Article 75 (Newly Added) The establishment of a patent agency or to obtainment of patent agent credentials must be upon approval of the patent administration department under the State Council Units and individuals must not engage in operations as patent agents for business purposes without the permission of the patent administration office under the State Council. If this provision is violated, the patent administration department will order the unlawful conduct stopped, confiscate unlawful gains, and may give a concurrent fine. | |
Article 71: If, in violation of the provisions of Article 20 of this Law, a person files an application for patent in a foreign country, thereby divulging national secrets, the unit where he works or the competent authority at a higher level shall impose on him an administrative sanction. If a crime is constituted, he shall be investigated for criminal responsibility according to law. | Article 76: If, in violation of the provisions of Article 20 of this Law, a person files an application for patent in a foreign country, thereby divulging national secrets, the unit where he works or the competent authority at a higher level shall impose on him a sanction. If a crime is constituted, he shall be investigated for criminal responsibility according to law. |
Article 72: If a person usurps the right of an inventor or designer to apply for a non-employment invention patent, or usurps any other rights and interests of an inventor or designer specified in this Law, he shall be given an administrative sanction by the unit where he works or the competent authority at a higher level. | (Deleted) |
Article 73: The administration department for patent-related work shall not be involved in recommending patented products to the public or engage in any other similar business activities. If the administration department for patent-related work violates the provisions of the preceding paragraph, its immediate superior or the supervisory authority shall order it to rectify, and confiscate its unlawful gains, if any; if the circumstances are serious, the principal leading person directly in charge and the other persons directly responsible shall be given administrative sanctions in accordance with law. | Article 77: Patent Administration Department shall not be involved in recommending patented products to the public or engage in any other similar business activities. If the work of the patent administration office violates the provisions of the preceding paragraph, its immediate superior or the supervisory authority shall order it to rectify, and confiscate its unlawful gains, if any; if the circumstances are serious, the principal leading person directly in charge and the other persons directly responsible shall be given sanctions in accordance with law. |
Article 74: Where a staff member of the government department engaged in administration of patent-related work or of a relevant department neglects his duty, abuses his power, or commits irregularities for personal gain, which constitutes a crime, he shall be pursued for criminal responsibility in accordance with law. If the case is not serious enough to constitute a crime, he shall be given an administrative sanction in accordance with law. | Article 78: Where a staff member of the government department engaged in administration of patent-related work or of a relevant department neglects his duty, abuses his power, or commits irregularities for personal gain he shall be given a sanction in accordance with law; and if it constitutes a crime, he shall be pursued for criminal responsibility in accordance with law. |
Chapter VIII of the implementation and application of patents (newly added) | |
Article 79 (Newly Added) Patent administration departments at all levels shall promote the implementation and application, encouraging and regulating the marketization of patent information and patent application activities. | |
Article 80 (Formerly Article 14) If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people's government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State. | |
Article 81 (Newly Added) After patent rights in employment invention-creations have been obtained by research and development organizations or schools for higher learning set up by the state, the inventor or designer may negotiate with the unit over their own application or permitting others to apply the patent, so long as it does not change or transfer the ownership of patent rights, and may enjoy rights and interests in accordance with the agreement. | |
Article 82 (Newly Added) If a patentee declares in writing to the Patent Office that it is willing to permit any person to implement their patent and clarifies royalties, the Patent Administration Department shall announce this and, the implementation of licenses of right. Declarations on licenses of right for utility or design patents, shall provide a patent rights assessment report. Withdrawal of declarations for licenses of right shall be submitted in writing and be publicly announced by the patent administration department under the State Council. If licence of right declarations are withdrawn, it does not impact the validity of licenses of right previously given. | |
Article 83 (Newly Added) Any persons desiring to apply a patent under a licences of right, shall notify the patentee in writing to obtain a license of right, and pay royalties. The licensee under a license of right may make a record with the patent administration department under the State Council as proof of obtaining the license of right. During the period of the license of right, the patentee must not sole or exclusive licenses to the patent, or request pre-trial temporary injunctions. | |
Article 84 (Newly Added) If parties have a dispute over licenses of right, they may request the patent administration office under the state council make a judgment. If parties are dissatisfied with the judgment, they may file suit in a people's court within 15 days of receiving notice. | |
Article 85 (Newly Added) Where patentees that participate in the formulation of national standards do not disclose standard-essential patents they have during the standards drafting process, it is viewed as their permitting the standard's application or use of that patented technology. Royalties for use are negotiated by the parties, and where the parties are unable to reach an agreement, they may request the patent administration department under the State Council to make a ruling. Where parties are dissatisfied with the ruling, they may file suit in the people's courts within 15 days of receiving notice. | |
Article 86 (Newly Added): Where patent rights are pledged to secure a loan, the borrower and lender jointly register the pledge with the patent administration department under the State Council, and the pledge takes effect from the date of registration. | |
Chapter VIII Supplementary Provisions | Chapter IX: Supplementary Provisions |
Article 75: To apply for patent at the patent administrative department under the State Council or go through other formalities, fees shall be paid in accordance with relevant regulations. | Article 87: To apply for patent at the patent administrative department under the State Council or go through other formalities, fees shall be paid in accordance with relevant regulations. |
Article 88 (Newly Added): Patent agency industry organizations shall accept the guidance and supervision of the patent administrative departments. Patent agency industry organizations shall follow provisions of their charter to strictly enforce requirements for accepting members and punish members for violations of industry self-discipline standard; acceptance members and punishments of members shall be promptly reported to the public. | |
Article 76: This Law shall go into effect on April 1, 1985. | Article 89: This Law shall go into effect on April 1, 1985. |
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