Comparison chart between the third amendment of the Chinese Patent Law (2008) and the fourth amendment of the Chinese Patent Law (2020) approved by the 22nd meeting of the 13th session of the Standing Committee of the National People's Congress
| The third amendment of the Chinese Patent Law (2008) | The fourth amendment of the Chinese Patent Law (2020) approved by the 22nd meeting of the 13th session of the Standing Committee of the National People's Congress |
| Chapter 1 GENERAL PROVISIONS | Chapter 1 GENERAL PROVISIONS |
| Article 1 This Law is enacted to protect patent rights for inventions-creations, to encourage inventions-creations, to foster the spreading and application of Inventions-creations, and to promote the development of science and technology, for meeting the needs of the construction of socialist modernization. | Article 1 This Law is enacted to protect patent rights for inventions-creations, to encourage inventions-creations, to foster the spreading and application of Inventions-creations, and to promote the development of science and technology, for meeting the needs of the construction of socialist modernization. |
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Article 2 The inventions-creations herein refer to inventions, utility models and designs. Inventions refer to new technical plans for products and methods or improvement thereof. Utility models refer to new technical plans of practical utility for the shape and/or structure of products. Designs refer to new designs of aesthetic feeling and suitability to industrial application for the shape and/or pattern of products as well as the color and shape and pattern of products. |
(Amended) Article 2 The inventions-creations herein refer to inventions, utility models and designs. Inventions refer to new technical plans for products and methods or improvement thereof. Utility models refer to new technical plans of practical utility for the shape and/or structure of products. Designs refer to new designs of aesthetic feeling and suitability to industrial application for the overall or partial shape and/or pattern of products as well as the color and shape and pattern of products. |
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Article 3 The Patent Administrative Organ under the State Council is responsible for the patent work nationwide, receives and examines patent applications and grants patent rights for inventions-creations that conform to the provisions of this Law. The authorities for patent work under the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the patent administration work within their jurisdictions. |
Article 3 The Patent Administrative Organ under the State Council is responsible for the patent work nationwide, receives and examines patent applications and grants patent rights for inventions-creations that conform to the provisions of this Law. The authorities for patent work under the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the patent administration work within their jurisdictions. |
| Article 4 Where an invention-creation for which a patent is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State. | Article 4 Where an invention-creation for which a patent is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State. |
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Article 5 No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest. No patent right shall be granted for any invention-creation that is made on the basis of the generic resources which are obtained or utilized in violation of laws and administrative regulations. |
Article 5 No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest. No patent right shall be granted for any invention-creation that is made on the basis of the generic resources which are obtained or utilized in violation of laws and administrative regulations. |
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Article 6 An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him by mainly using the material and technical means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee. For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the application is approved, the inventor or designer shall be the patentee. For an invention-creation made by a person by using the material and technical means of the entity to which he belongs, and where the entity and the inventor or designer has entered into an agreement under which there is provision on who has right to apply for a patent and to whom the patent right belongs, the provisions of the agreement shall prevail. |
(Amended) Article 6 An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him by mainly using the material and technical means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee. The entity may handle the right to apply for a patent or the patent rights for a service invention according to law, to facilitate implementation and exploitation of the related invention-creation. For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the application is approved, the inventor or designer shall be the patentee. For an invention-creation made by a person by using the material and technical means of the entity to which he belongs, and where the entity and the inventor or designer has entered into an agreement under which there is provision on who has right to apply for a patent and to whom the patent right belongs, the provisions of the agreement shall prevail. |
| Article 7 No entity or individual shall prevent the inventor or designer from filing an application for a patent for a non-service invention-creation. | Article 7 No entity or individual shall prevent the inventor or designer from filing an application for a patent for a non-service invention-creation. |
| Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made or jointly made the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee. | Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made or jointly made the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee. |
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Article 9 Only one patent right may be granted for the identical invention-creation. However, where the same applicant applies for the utility model patent and invention-creation patent for the same invention-creation in the same day, if the utility model patent which was obtained firstly has not terminated and the applicant declares to give up this utility model patent, the invention-creation patent may be granted to the applicant. Where two applicants or more file applications for the patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first. |
Article 9 Only one patent right may be granted for the identical invention-creation. However, where the same applicant applies for the utility model patent and invention-creation patent for the same invention-creation in the same day, if the utility model patent which was obtained firstly has not terminated and the applicant declares to give up this utility model patent, the invention-creation patent may be granted to the applicant. Where two applicants or more file applications for the patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first. |
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Article 10 The right to apply for a patent and the patent right may be assigned. For any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner, a foreign enterprise or other foreign organization, the entity or individual concerned shall go through the procedures for such assignment in accordance with the relevant laws and administrative regulations. Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract and should register it with the patent administrative organ under the State Council. The patent administrative organ shall announce the registration. The assignment will come into force upon the date of registration. |
Article 10 The right to apply for a patent and the patent right may be assigned. For any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner, a foreign enterprise or other foreign organization, the entity or individual concerned shall go through the procedures for such assignment in accordance with the relevant laws and administrative regulations. Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract and should register it with the patent administrative organ under the State Council. The patent administrative organ shall announce the registration. The assignment will come into force upon the date of registration. |
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Article 11 After the grant of the patent right for an invention or utility model, except as otherwise provided for in the law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes. After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes. |
Article 11 After the grant of the patent right for an invention or utility model, except as otherwise provided for in the law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes. After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes. |
| Article 12 Any entity or individual exploiting the patent of another must, except as provided for in Article 14 of this Law, conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent. | Article 12 Any entity or individual exploiting the patent of another must, except as provided for in Article 14 of this Law, conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent. |
| Article 13 After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee. | Article 13 After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee. |
| Article 14 For any patent for invention belonging to state-owned enterprises or entities, which is of great significance to national or public interests, the competent departments under the State Council as well as the people’s governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, after approved by the State Council, the said patented invention be spread and exploited within the prescribed scope and to allow designated entities to exploit it. The entities that exploit it shall, according to the prescriptions of the State, pay exploitation fees to the patentee. | (moved to Article 49) |
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Article 15 Where the joint owners of the right to apply for a patent or a patent right have an agreement between them, the agreement shall prevail. Otherwise, the joint owners may individually exploit the patent or authorize others to exploit the patent by means of general license. Where others are authorized to exploit the patent, the fees collected shall be shared by the joint owners. Except for the above-mentioned situations, the consent of all of the joint owners shall be obtained for the exploitation of a joint-owned right to apply for a patent or a patent right. |
Article 14 Where the joint owners of the right to apply for a patent or a patent right have an agreement between them, the agreement shall prevail. Otherwise, the joint owners may individually exploit the patent or authorize others to exploit the patent by means of general license. Where others are authorized to exploit the patent, the fees collected shall be shared by the joint owners. Except for the above-mentioned situations, the consent of all of the joint owners shall be obtained for the exploitation of a joint-owned right to apply for a patent or a patent right. |
| Article 16 The entity that is granted the patent right shall award to the inventor or designer of a service invention-creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or designer an appropriate remuneration based on the extent of exploitation and application and the economic benefits yielded. |
Article 15 The entity that is granted the patent right shall award to the inventor or designer of a service invention-creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or designer an appropriate remuneration based on the extent of exploitation and application and the economic benefits yielded. The State encourages the entity that granted the patent right to implement property right incentives by means of for example stock rights, options and dividends, so that inventors or designers enjoy reasonably shares of the benefits of innovation. |
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Article 17 The inventor or designer has the right to be named as such in the patent document. The patentee has the right to affix a patent mark on the patented product or on the packing of that product. |
Article 16 The inventor or designer has the right to be named as such in the patent document. The patentee has the right to affix a patent mark on the patented product or on the packing of that product. |
| Article 18 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity. | Article 17 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity. |
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Article 19 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent agency designated by the patent administrative organ under the State Council to act as his or its agent. Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent. The patent agencies should abide by the laws and administrative regulations and should deal with patent applications and other patent matters according to the commissions of the clients. Except for those applications that have been published or announced, the agencies should bear the responsibility for keeping confidential the content of its clients' inventions-creations. The administrative regulations for administering the patent agencies shall be formulated by the State Council. |
Article 18 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent agency designated by the patent administrative organ under the State Council to act as his or its agent. Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent. The patent agencies should abide by the laws and administrative regulations and should deal with patent applications and other patent matters according to the commissions of the clients. Except for those applications that have been published or announced, the agencies should bear the responsibility for keeping confidential the content of its clients' inventions-creations. The administrative regulations for administering the patent agencies shall be formulated by the State Council. |
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Article 20 Where any entity or individual intends to file an application in a foreign country for a patent for its or his invention-creation made in China, it or he shall report to the patent administrative organ under the State Council for a secret inspection. The procedures and time limit for the secret inspection shall be subject to the provisions provided by the State Council. Any Chinese entity of individual may, according to the international treaties concerned to which China is a party, file an international application for patent for its or his invention-creation. The applicant for the international application should abide by the provisions of the preceding paragraph. The patent administrative organ under the State Council shall handle the international application for patent in line with the international treaty to which China is a party, this Law and the administrative regulations concerned made by the State Council. For any invention or utility model for which the patent has been applied in a foreign country in violation of the provisions as stipulated in Paragraph 1 herein, if the application for the patent for it in China is filed, no patent right shall be granted. |
Article 19 Where any entity or individual intends to file an application in a foreign country for a patent for its or his invention-creation made in China, it or he shall report to the patent administrative organ under the State Council for a secret inspection. The procedures and time limit for the secret inspection shall be subject to the provisions provided by the State Council. Any Chinese entity of individual may, according to the international treaties concerned to which China is a party, file an international application for patent for its or his invention-creation. The applicant for the international application should abide by the provisions of the preceding paragraph. The patent administrative organ under the State Council shall handle the international application for patent in line with the international treaty to which China is a party, this Law and the administrative regulations concerned made by the State Council. For any invention or utility model for which the patent has been applied in a foreign country in violation of the provisions as stipulated in Paragraph 1 herein, if the application for the patent for it in China is filed, no patent right shall be granted. |
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(Added) Article 20 Where a patent is applied or a patent right is exploited, the principle of good faith shall be implemented. The patent right shall not be abused to damage public interests or the legitimate rights and interests of others. Abuse of patent rights to exclude or restrict competition, which constitutes monopolistic behavior, shall be punished in accordance with the Anti-Monopoly Law of the People's Republic of China. |
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Article 21 The patent administrative organ under the State Council and the patent reexamination board subordinated to it shall handle patent applications and requests concerned according to law and in the spirit of objectiveness, justice, precision and punctuality. The patent administrative organ under the State Council shall release complete and accurate patent information in a timely manner, and publish patent communiqués periodically. Until the publication or announcement of the application for a patent, staff members of the patent administrative organ and other personnel involved have the duty to keep its content confidential. |
(Amended) Article 21 The patent administrative organ under the State Council The patent administrative organ under the State Council shall improve the common service system for patent information, release complete and accurate patent information in a timely manner, provide basic patent data, Until the publication or announcement of the application for a patent, staff members of the patent administrative organ and other personnel involved have the duty to keep its content confidential. |
| CHAPTER II REQUIREMENTS FOR GRANT OF PATENT RIGHT | CHAPTER II REQUIREMENTS FOR GRANT OF PATENT RIGHT |
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Article 22 Any invention or utility model for which patent right may be granted must be of novelty, inventiveness and practical applicability. Novelty means neither the invention or utility model belongs to any existing technique, nor any entity or individual filed previously with the patent administrative organ under the State Council an application for the identical invention or utility model and it was recorded in any published patent application document or announced patent document after the date of application. Inventiveness means that, as compared with the existing technique, the invention has prominent substantive features and represents a notable progress and the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be made or used and can produce effective results. The existing techniques herein refer to the techniques known to the public at both home and abroad before the date of application. |
Article 22 Any invention or utility model for which patent right may be granted must be of novelty, inventiveness and practical applicability. Novelty means neither the invention or utility model belongs to any existing technique, nor any entity or individual filed previously with the patent administrative organ under the State Council an application for the identical invention or utility model and it was recorded in any published patent application document or announced patent document after the date of application. Inventiveness means that, as compared with the existing technique, the invention has prominent substantive features and represents a notable progress and the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be made or used and can produce effective results. The existing techniques herein refer to the techniques known to the public at both home and abroad before the date of application. |
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Article 23 Neither the design for which a patent right may be granted belongs to existing designs, nor any entity or individual has filed with the patent administrative organ under the State Council an application for the identical design before the date of application and it was recorded in any announced patent document after the date of application. The design for which a patent right may be granted shall be obviously different from any existing design or any combination of existing design features. The design for which a patent right may be granted shall not collide with any legitimate rights obtained by others before the date of application. The existing design herein refers to the designs known to the public at both home and abroad before the date of application. |
Article 23 Neither the design for which a patent right may be granted belongs to existing designs, nor any entity or individual has filed with the patent administrative organ under the State Council an application for the identical design before the date of application and it was recorded in any announced patent document after the date of application. The design for which a patent right may be granted shall be obviously different from any existing design or any combination of existing design features. The design for which a patent right may be granted shall not collide with any legitimate rights obtained by others before the date of application. |
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Article 24 An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred: (1) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government; (2) where it was first made public at a prescribed academic or technological meeting; (3) where it was disclosed by any person without the consent of the applicant. |
(Amended) Article 24 An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred: (1) where it was first made public for the purpose of public interest when the country is in emergency or in an abnormal state; (2) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government; (3) where it was first made public at a prescribed academic or technological meeting; (4) where it was disclosed by any person without the consent of the applicant. |
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Article 25 For any of the following items, no patent right shall be granted: (1) Scientific discoveries; (2) Rules and methods for mental activities; (3) Methods for the diagnosis or the treatment of diseases; (4) Animal and plant varieties; (5) Substances obtained by means of nuclear transformation; and (6) Designs for the pattern or/and color on printed matters mainly used as marks. For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law. |
(Amended) Article 25 For any of the following items, no patent right shall be granted: (1) Scientific discoveries; (2) Rules and methods for mental activities; (3) Methods for the diagnosis or the treatment of diseases; (4) Animal and plant varieties; (5) Nuclear transformation and substances obtained by means of nuclear transformation; and (6) Designs for the pattern or/and color on printed matters mainly used as marks. For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law. |
| CHAPTER III APPLICATION FOR PATENT | CHAPTER III APPLICATION FOR PATENT |
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Article 26 Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted. The request shall state the title of the invention or utility model, the name of the inventor, the name and the address of the applicant and other related matters. The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model. The claims shall be supported by the description and shall state the extent of the patent protection asked for. For any invention-creation based on generic resources, an applicant shall state the direct source and the origin of the said generic resources in its/his patent application documents; if it/he cannot tell the origin, reasons shall be given. |
Article 26 Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted. The request shall state the title of the invention or utility model, the name of the inventor, the name and the address of the applicant and other related matters. The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model. The claims shall be supported by the description and shall state the extent of the patent protection asked for. For any invention-creation based on generic resources, an applicant shall state the direct source and the origin of the said generic resources in its/his patent application documents; if it/he cannot tell the origin, reasons shall be given. |
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Article 27 Where an application for a patent for design is filed, a request, drawings or photographs of the design as well as a brief description of the design shall be submitted. The drawings or photographs submitted by the applicant shall clearly show the design incorporated in a product for which patent protection is requested. |
Article 27 Where an application for a patent for design is filed, a request, drawings or photographs of the design as well as a brief description of the design shall be submitted. The drawings or photographs submitted by the applicant shall clearly show the design incorporated in a product for which patent protection is requested. |
| Article 28 The date on which the patent administrative organ under the State Council receives the application shall be the date of application. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of application. | Article 28 The date on which the patent administrative organ under the State Council receives the application shall be the date of application. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of application. |
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Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the patent administrative organ under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority. |
(Amended) Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in China an application for a patent for design, he or it files with the patent administrative organ under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority. |
| Article 30 Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made. |
(Amended) Article 30 Any applicant who claims the right of priority for a patent for invention or utility model shall make a written declaration when the application is filed, and submit, within Any applicant who claims the right of priority for a patent for design shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed. If the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made. |
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Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application. An application for a patent for design shall be limited to one design. Two or more similar designs for a product or two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application. |
Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application. An application for a patent for design shall be limited to one design. Two or more similar designs for a product or two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application. |
| Article 32 An applicant may withdraw his or its application for a patent at any time before the patent right is granted. | Article 32 An applicant may withdraw his or its application for a patent at any time before the patent right is granted. |
| Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs. | Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs. |
| CHAPTER IV EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT | CHAPTER IV EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT |
| Article 34 Where, after receiving an application for a patent for invention, the patent administrative organ under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the patent administrative organ under the State Council publishes the application earlier. | Article 34 Where, after receiving an application for a patent for invention, the patent administrative organ under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the patent administrative organ under the State Council publishes the application earlier. |
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Article 35 Upon the request of the applicant for a patent for invention, made at any time within three years from the date of application, the patent administrative organ under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn. The patent administrative organ under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary. |
Article 35 Upon the request of the applicant for a patent for invention, made at any time within three years from the date of application, the patent administrative organ under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn. The patent administrative organ under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary. |
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Article 36 When an applicant for a patent for invention requests examination as to substance, he or it shall furnish reference materials concerning the invention before the date of application. For an application for a patent for invention that has been already filed in a foreign country, the patent administrative organ under the State Council may ask the applicant to furnish within a prescribed time limit documents concerning any search made for the purpose of examining that application or concerning the results of any examination made in that country. If, without any justified reason, the said documents are not furnished within the prescribed time limit, the application shall be deemed to have been withdrawn. |
Article 36 When an applicant for a patent for invention requests examination as to substance, he or it shall furnish reference materials concerning the invention before the date of application. For an application for a patent for invention that has been already filed in a foreign country, the patent administrative organ under the State Council may ask the applicant to furnish within a prescribed time limit documents concerning any search made for the purpose of examining that application or concerning the results of any examination made in that country. If, without any justified reason, the said documents are not furnished within the prescribed time limit, the application shall be deemed to have been withdrawn. |
| Article37 Where the patent administrative organ under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn. | Article 37 Where the patent administrative organ under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn. |
| Article 38 Where, after the applicant has made the observations or amendments, the patent administrative organ under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected. | Article 38 Where, after the applicant has made the observations or amendments, the patent administrative organ under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected. |
| Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administrative organ under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall come into force upon the date of the announcement. | Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administrative organ under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall come into force upon the date of the announcement. |
| Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administrative organ under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall come into effect upon the date of the announcement. | Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administrative organ under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall come into effect upon the date of the announcement. |
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Article 41 The patent administrative organ under the State Council shall set up a Patent Reexamination Board. Where an applicant is not satisfied with the decision of the patent administrative organ under the State Council rejecting his application for patent, such applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent. Where the applicant for patent who made the request for reexamination is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people’s court. |
(Amended) Article 41 Where the applicant for patent who made the request for reexamination is not satisfied with the decision of the patent administrative organ under the State Council, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people’s court. |
| CHAPTER V DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT | CHAPTER V DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT |
| Article 42 The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing. |
(Amended) Article 42 The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models Where four years have passed from the date of application for a patent for invention and three years have passed from the date on which the request for substantive examination was filed when the patent is granted, the patent administrative organ under the State Council shall, upon the request of the patentee, provide compensation for the duration of the patent right for unreasonable delay in the process of granting, unless the unreasonable delay was caused by the applicant. In order to compensate for the time taken by the review and approval for the marketing of new drugs, the patent administrative organ under the State Council shall, upon the request of the patentee, provide compensation for the duration of the patent right for new drug-related invention that have been approved for marketing in China. The compensation period shall not exceed five years, and the total effective duration of the patent right shall not exceed 14 years after the new drug is approved for marketing. |
| Article 43 The patentee shall pay an annual fee beginning with the year in which the patent right was granted. | Article 43 The patentee shall pay an annual fee beginning with the year in which the patent right was granted. |
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Article 44 In any of the following cases, the patent right shall cease before the expiration of its duration: (1) where an annual fee is not paid as prescribed; (2) where the patentee abandons his or its patent right by a written declaration. Any cessation of the patent right shall be registered and announced by the patent administrative organ under the State Council. |
Article 44 In any of the following cases, the patent right shall cease before the expiration of its duration: (1) where an annual fee is not paid as prescribed; (2) where the patentee abandons his or its patent right by a written declaration. Any cessation of the patent right shall be registered and announced by the patent administrative organ under the State Council. |
| Article 45 Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid. |
(Amended) Article 45 Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the |
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Article 46 The Patent Reexamination Board shall timely examine the request for invalidation of the patent right, make a decision and notify the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered and announced by the patent administrative organ under the State Council. Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people’s court. The people’s court shall notify the opponent party of the party which has requested for the invalidation procedure to be represented the proceedings as the third party. |
(Amended) Article 46 The Where any party is not satisfied with the decision of the |
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Article 47 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning. The decision of invalidation shall have no retroactive effect on any judgment or order on patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of patent infringement which has been implemented or enforced, and on any contract of patent license and of assignment of patent right which have been performed, prior to the decision of invalidation; however, the damages caused to other persons in bad faith on the part of the patentee shall be compensated. If, pursuant to the provisions of the preceding paragraph, no repayment, by the patentee or the assignor of the patent right to the licensee or the assignee of the patent right, of the fee for the exploitation of the patent or the price for the assignment of the patent right is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or the price for the assignment of the patent right to the licensee or the assignee of the patent right. |
Article 47 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning. The decision of invalidation shall have no retroactive effect on any judgment or order on patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of patent infringement which has been implemented or enforced, and on any contract of patent license and of assignment of patent right which have been performed, prior to the decision of invalidation; however, the damages caused to other persons in bad faith on the part of the patentee shall be compensated. If, pursuant to the provisions of the preceding paragraph, no repayment, by the patentee or the assignor of the patent right to the licensee or the assignee of the patent right, of the fee for the exploitation of the patent or the price for the assignment of the patent right is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or the price for the assignment of the patent right to the licensee or the assignee of the patent right. |
| CHATER VI COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT |
CHATER VI |
| (Added) Article 48 The patent administrative organ under the State Council and the administrative department for patent affairs of local people's governments shall, in conjunction with the concerned departments at the same level, take measures to strengthen public services for patents and promote the implementation and exploitation of patents. | |
| (moved from Article 14) | Article 49 For any patent for invention belonging to state-owned enterprises or entities, which is of great significance to national or public interests, the competent departments under the State Council as well as the people’s governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, after approved by the State Council, the said patented invention be spread and exploited within the prescribed scope and to allow designated entities to exploit it. The entities that exploit it shall, according to the prescriptions of the State, pay exploitation fees to the patentee. |
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(Added) Article 50 Where a patentee voluntarily declares in writing to the patent administrative organ under the State Council that he is willing to license any entity or individual to exploit his patent, and specifies the method and standard for payment of license fees, the patent administrative organ under the State Council shall make an announcement and implement open licensing. Where an open license statement is filed for utility model and design patents, a patent evaluation report shall be provided. Where the open license statement is withdrawn, the patentee shall submitted a statement in writing to be announced by the patent administrative organ under the State Council. Where an open license statement is withdrawn by announcement, the validity of the open license granted earlier will not be affected. |
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(Added) Article 51 If any entity or individual intends to implement an open-licensed patent, it shall notify the patentee in writing and is licensed to implement the patent after paying the license fee in accordance with the announced method and standard. During the time period of open license, the annual patent fee to be paid by the patentee shall be reduced or remit. The patentee implementing open license may provide an ordinary license for the licensee after negotiation on the royalties, but should not provide exclusive or sole license for the involved patent. |
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| (Added) Article 52 Where the parties of interest have disputes over implementation of open license, the parties shall negotiate to settle the disputes. Where the parties of interest are unwilling to negotiate or the negotiation fails, the parties may petition to the patent administrative organ under the State Council for resolution or appeal to the people’s court. | |
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Article 48 In any of the following situations, the patent administrative organ under the State Council may, upon the application of the entity or individual that is qualified to exploit an invention or utility model, grant a compulsory license to exploit the patent for invention or utility model: (1) Where the patentee fails to exploit or fully exploit its/his patent without any justified reason within three years from the date on which the patent right was granted and within four years from the date on which the application for the patent was filed; or (2) Where the patentee’s exercise of it/his patent right is deemed as a monopoly practice according to law and the compulsory license is done for the purpose of eliminating or reducing the negative effects of such practice on competition. |
Article 53 In any of the following situations, the patent administrative organ under the State Council may, upon the application of the entity or individual that is qualified to exploit an invention or utility model, grant a compulsory license to exploit the patent for invention or utility model: (1) Where the patentee fails to exploit or fully exploit its/his patent without any justified reason within three years from the date on which the patent right was granted and within four years from the date on which the application for the patent was filed; or (2) Where the patentee’s exercise of it/his patent right is deemed as a monopoly practice according to law and the compulsory license is done for the purpose of eliminating or reducing the negative effects of such practice on competition. |
| Article 49 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model. | Article 54 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model. |
| Article 50 For the purpose of public health, the patent administrative organ under the State Council may grant a compulsory license to produce and export the drugs with patent rights to the countries or regions as prescribed in the relevant international treaties to which China is a party. | Article 55 For the purpose of public health, the patent administrative organ under the State Council may grant a compulsory license to produce and export the drugs with patent rights to the countries or regions as prescribed in the relevant international treaties to which China is a party. |
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Article 51 Where an invention or utility model for which the patent right was granted has major technical progress of prominent economic significance when compared with another invention or utility model for which the patent right has been granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier one, the patent administrative department of the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model. Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department of the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model. |
Article 56 Where an invention or utility model for which the patent right was granted has major technical progress of prominent economic significance when compared with another invention or utility model for which the patent right has been granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier one, the patent administrative department of the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model. Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department of the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model. |
| Article 52 Where an invention involved in a compulsory license is semiconductor technology, its application shall be confined to the purpose of public interests and the conditions as prescribed in Paragraph 2 of Article 48 of the Law. | Article 57 Where an invention involved in a compulsory license is semiconductor technology, its application shall be confined to the purpose of public interests and the conditions as prescribed in Paragraph 2 of Article 53 of the Law. |
| Article 53 A compulsory license shall be applied mainly in the domestic market apart from those granted in accordance with Paragraph 2 of Article 48 and Article 50 of the Law. | Article 58 A compulsory license shall be applied mainly in the domestic market apart from those granted in accordance with Paragraph 2 of Article 53 and Article 55 of the Law. |
| Article 54 In accordance with Paragraph 1 of Article 48 and Article 51 of the Law, any entity or individual who applies for a compulsory license should offer evidences to prove that he asks for the permission of the patentee to use patent with rational conditions but fails to gain permission within rational time. | Article 59 In accordance with Paragraph 1 of Article 53 and Article 56 of the Law, any entity or individual who applies for a compulsory license should offer evidences to prove that he asks for the permission of the patentee to use patent with rational conditions but fails to gain permission within rational time. |
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Article 55 The patent administrative organ under the State Council should timely inform the patentee and make registration and announcement to the public while making a decision on granting a compulsory license. The decision on granting a compulsory license should be based on the scope and time prescribed on the ground of the compulsory license. Where the ground of a compulsory license is removed, the patent administrative organ under the State Council should on the request of the patentee make the decision on terminating a compulsory license in the wake of review. |
Article 60 The patent administrative organ under the State Council should timely inform the patentee and make registration and announcement to the public while making a decision on granting a compulsory license. The decision on granting a compulsory license should be based on the scope and time prescribed on the ground of the compulsory license. Where the ground of a compulsory license is removed, the patent administrative organ under the State Council should on the request of the patentee make the decision on terminating a compulsory license in the wake of review. |
| Article 56 Any entity or individual that has been granted a compulsory license shall not enjoy the exclusive right to exploit or have the right to allow others to exploit. | Article 61 Any entity or individual that has been granted a compulsory license shall not enjoy the exclusive right to exploit or have the right to allow others to exploit. |
| Article 57 Any entity or individual that has been granted a compulsory license should pay rational royalty to the patentee or handle royalty in accordance with related international treaties acceded to by the People’s Republic of China. Where royalty is paid, both parties involved shall agree on the amount; where both parties involved fail to reach an agreement, the patent administrative organ under the State Council shall be responsible to make a ruling. | Article 62 Any entity or individual that has been granted a compulsory license should pay rational royalty to the patentee or handle royalty in accordance with related international treaties acceded to by the People’s Republic of China. Where royalty is paid, both parties involved shall agree on the amount; where both parties involved fail to reach an agreement, the patent administrative organ under the State Council shall be responsible to make a ruling. |
| Article 58 Where a patentee is discontent with the decision of the patent administrative organ under the State Council on exploit a compulsory license or a patent and any entity or individual that has been granted a compulsory license are discontent with the ruling of royalty on exploiting a compulsory license made by the patent administrative organ under the State Council, he may file a lawsuit to the people’s court within three months upon receiving the notice. | Article 63 Where a patentee is discontent with the decision of the patent administrative organ under the State Council on exploit a compulsory license or a patent and any entity or individual that has been granted a compulsory license are discontent with the ruling of royalty on exploiting a compulsory license made by the patent administrative organ under the State Council, he may file a lawsuit to the people’s court within three months upon receiving the notice. |
| CHAPTER VII PROTECTION OF PATENT RIGHT | CHAPTER VII PROTECTION OF PATENT RIGHT |
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Article 59 The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims'. The description and the appended drawings may be used to interpret the claims. The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs. |
Article 64 The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims'. The description and the appended drawings may be used to interpret the claims. The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs. |
| Article 60 Where anyone exploits a patent without the authorization of the patentee, he or it constitutes an infringement to the patent right of the patentee. For the disputes resulted from the infringement, the parties concerned may settle it by themselves through consultation. Where the parties are not willing to settle the disputes through consultation or where the consultation fails to reach an agreement, the patentee or any interested party may institute legal proceedings in the people's court or to request the authorities for patent work to handle the matter. Where the authorities for patent work consider the infringement well found, it has the power to order the infringer to stop infringement acts immediately. In case the party concerned is not satisfied with the decision, he or it may, within 15 days from the receipt of the notification of the order, institutes legal proceedings in the people's court, according to the Administrative Procedure Law of the People's Republic of China. If such proceedings are not instituted within the time limit and if the order is not complied with, the authority for patent work may approach the people's court for compulsory execution. The authorities for patent work may, upon the request of the parties concerned, mediate on the damages concerned. If mediation does not work, the parties concerned may lodge a lawsuit with the people's court according to the Civil Procedure Law of the People's Republic of China. | Article 65 Where anyone exploits a patent without the authorization of the patentee, he or it constitutes an infringement to the patent right of the patentee. For the disputes resulted from the infringement, the parties concerned may settle it by themselves through consultation. Where the parties are not willing to settle the disputes through consultation or where the consultation fails to reach an agreement, the patentee or any interested party may institute legal proceedings in the people's court or to request the authorities for patent work to handle the matter. Where the authorities for patent work consider the infringement well found, it has the power to order the infringer to stop infringement acts immediately. In case the party concerned is not satisfied with the decision, he or it may, within 15 days from the receipt of the notification of the order, institutes legal proceedings in the people's court, according to the Administrative Procedure Law of the People's Republic of China. If such proceedings are not instituted within the time limit and if the order is not complied with, the authority for patent work may approach the people's court for compulsory execution. The authorities for patent work may, upon the request of the parties concerned, mediate on the damages concerned. If mediation does not work, the parties concerned may lodge a lawsuit with the people's court according to the Civil Procedure Law of the People's Republic of China. |
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Article 61 Where any dispute over infringement of a patent right is involved in a patent for invention for the manufacturing process of a new product, any entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process. Where any dispute over infringement of a patent right is involved in a patent for utility model or patent right for design, the people’s court or the patent administrative department may require the patentee or interested party to issue the patent appraisal report after retrieval, analysis and assessment to act as the proof for trial and handling the dispute over infringement of a patent right. |
(Amended) Article 66 Where any dispute over infringement of a patent right is involved in a patent for invention for the manufacturing process of a new product, any entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process. Where any dispute over infringement of a patent right is involved in a patent for utility model or patent right for design, the people’s court or the patent administrative department may require the patentee or interested party to issue the patent appraisal report after retrieval, analysis and assessment to act as the proof for trial and handling the dispute over infringement of a patent right. The patentee, a person of interest or the alleged infringing party may take the initiative to present a patent evaluation report. |
| Article 62 Where the alleged infringer has the evidence to prove that the technology or design exploited by him is the existing technology or design in the dispute over infringement of a patent right, no infringement of a patent right is constituted. | Article 67 Where the alleged infringer has the evidence to prove that the technology or design exploited by him is the existing technology or design in the dispute over infringement of a patent right, no infringement of a patent right is constituted. |
| Article 63 Whoever counterfeits the patent of others shall, in addition to bearing civil liabilities in accordance with the law, be ordered by the patent administrative department to make a correction and be announced thereby, its/his illegal proceeds, if any, shall be confiscated, and it/he may be fined up to four times the illegal proceeds. If there are no illegal proceeds, it/he may be fined up to RMB200,000. If any crime is constituted, it/he shall be subject to criminal liabilities in accordance with the law. |
(Amended) Article 68 Whoever counterfeits the patent of others shall, in addition to bearing civil liabilities in accordance with the law, be ordered by the department responsible for patent enforcement |
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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. |
(Amended) Article 69 When the department responsible for patent enforcement (1) inquire the parties concerned, and investigate the circumstances related to the suspected illegal act; (2) conduct on-the-spot inspection of the places where the suspected illegal act is committed; (3) consult and duplicate the relevant contracts, invoices, account books and other related materials; (4) check the products related to the suspected illegal act; and (5) seal or detain the products that are proved to be produced by the counterfeited patent. The patent administrative department may, when handling patent infringement disputes upon the request of the patentee or a person of interest, take measures as prescribed in items (1), (2) and (4) of the preceding paragraph. When the department responsible for patent enforcement and the patent administrative organ perform their duties as prescribed in the preceding paragraph, the parties concerned shall provide assistance and cooperation, instead of refusing to do so or creating obstacles. |
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(Added) Article 70 The patent administrative organ under the State Council may, upon the request of the patentee or a person interest, handle patent infringement disputes that have significant influence nationwide. The patent administrative organ under a local people’s government may, when handling patent infringement disputes upon the request of the patentee or a person of interest, combine cases in the local administrative region which involve infringement to the same patent right, and apply to the patent administrative organ under the people’s government at the next higher level to deal with cases in different regions which involve infringement to the same patent right. |
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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. |
(Amended) Article 71 The amount of compensation for patent right infringement shall be determined according to the patentee's actual losses caused by the infringement or the benefits acquired by the infringer through 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 30,000 The amount of compensation shall include the reasonable expenses paid by the patentee for putting an end to the infringement. In order to determine the amount of compensation, the people’s court may, in a case where the patentee has made all efforts to provide evidence while the account books and other materials related to the infringing act are held by the infringer, order the infringer to provide thte account books and other materials related to the infringing act. Where the infringer refuse to provide or provide false account books and materials, the people’s court may determine the amount of compensation with reference to the claims of the patentee and the evidence provided by the patentee. |
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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. |
(Amended) Article 72 If the patentee or interested party has evidence to prove that another person is committing or is about to commit a patent infringement or a behavior that hinders implementation of a patent, 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 orders to |
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Article 67 To prevent the act of infringement of patent, the patentee or the party involved may apply to the people’s court for conserving evidence in the situation where evidence may be destroyed or difficult to gain in future. The people’s court may order the applicant to offer guarantee while taking the conservatory measures; where the applicant does not offer guarantee, its application shall not be rejected. The people’s court should make a ruling within 48 hours upon accepting the application; where a ruling is made that the conservatory measures are taken, it should be executed immediately. The applicant fails to file a lawsuit within fifteen days upon the day when the people’s court take the conservatory measures, the people’s court should remove the measures. |
(Amended) Article 73 To prevent the act of infringement of patent, the patentee or the party involved may apply to the people’s court under the law for conserving evidence in the situation where evidence may be destroyed or difficult to gain in future. |
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Article 68 Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act. Where anyone uses an invention after the application for a patent for this invention is published but before the patent right is granted without paying adequate royalties, the statute of limitations for the patentee to claim the payment of such royalties shall be two years, commencing from the date when the patentee knows or ought to know that his invention is used by some else. However, if the patentee has known or ought to know this fact prior to the date when the patent right is granted, the statute of limitations shall commence from the date when the patent right is granted. |
(Amended) Article 74 Prescription for instituting legal proceedings concerning the infringement of patent right is three Where anyone uses an invention after the application for a patent for this invention is published but before the patent right is granted without paying adequate royalties, the statute of limitations for the patentee to claim the payment of such royalties shall be two years, commencing from the date when the patentee knows or ought to know that his invention is used by some else. However, if the patentee has known or ought to know this fact prior to the date when the patent right is granted, the statute of limitations shall commence from the date when the patent right is granted. |
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Article 69 None of the following shall be deemed an infringement of the patent right: (1) Anyone uses, promises the sale, sales or import of a patented product or product directly gained by means of patent after being sold by the patentee or the authorized entity or individual; (2) Anyone who has made the identical product or used the identical process or has made necessary preparations for making such a product or using such a process prior to the date of filing continues making such a product or using such a process only within the original scope; (3) Any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned in accordance with any agreement concluded between China and that country to which the foreign means of transport belongs, or in accordance with any international treaty to which both countries have acceded, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations; (4) Any person uses the patent concerned solely for the purposes of scientific research and experimentation; and (5) Any person offers information needed in the administrative approval to manufacture, use and import patented drugs or patented medical equipment and specially manufacture and import patented drugs or patented medical equipment for him. |
Article 75 None of the following shall be deemed an infringement of the patent right: (1) Anyone uses, promises the sale, sales or import of a patented product or product directly gained by means of patent after being sold by the patentee or the authorized entity or individual; (2) Anyone who has made the identical product or used the identical process or has made necessary preparations for making such a product or using such a process prior to the date of filing continues making such a product or using such a process only within the original scope; (3) Any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned in accordance with any agreement concluded between China and that country to which the foreign means of transport belongs, or in accordance with any international treaty to which both countries have acceded, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations; (4) Any person uses the patent concerned solely for the purposes of scientific research and experimentation; and (5) Any person offers information needed in the administrative approval to manufacture, use and import patented drugs or patented medical equipment and specially manufacture and import patented drugs or patented medical equipment for him. |
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(Added) Article 76 During the review and approval for drug marketing, where the applicant for drug marketing license and a related patentee or person of interest have disputes over the patent rights related to the drug applying for registration, the concerned parites may appeal to the people’s court and request the people’s court to determine whether the technical solutions related to the drug applying for registration fall within the scope of protection of a patent for drug of others. Within a prescribed time period, the drug regulatory administration under the State Council may decide whether to suspend the approval of marketing of the related drug according to the valid judgment of the people’s court. The applicant for drug marketing approval and the patentee or the person of interest may ask for administrative adjudication of the patent administrative organ under the State Council with regard to the dispute over patent rights related to the drug applying fro registration. The drug regulatory administration under the State Council, in conjunction with the patent administrative organ under the State Council, shall formulate specific measures for resolution of disputes over patent rights during the handover period of reviewing and approval for drug marketing license and drug marketing license application stage, which shall be implemented after the approval of the State Council. |
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| 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 77 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 71 Where any person, in violation of the provisions of Article 20 of this Law, unauthorizedly files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. If the circumstances are serious, he shall be prosecuted for his criminal liability according to the law. | Article 78 Where any person, in violation of the provisions of Article 20 of this Law, unauthorizedly files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. If the circumstances are serious, he shall be prosecuted for his criminal liability according to the law. |
| Article 72 Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level. |
(Removed) |
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Article 73 The authorities for patent work should not participate in any such commercial activities as to recommend patented products to the public. Where any authorities for patent work violates the provisions of the preceding paragraph, it shall be ordered to amend its ways and to eliminate its bad influence by its competent authority at the higher level or by the supervisory authority, and its illegal income shall be confiscated. Where the circumstances are serious, any person directly responsible or any other person who are directly involved shall be subject to disciplinary sanction according to law. |
(Amended) Article 79 The authorities for patent work should not participate in any such commercial activities as to recommend patented products to the public. Where any authorities for patent work violates the provisions of the preceding paragraph, it shall be ordered to amend its ways and to eliminate its bad influence by its competent authority at the higher level or by the supervisory authority, and its illegal income shall be confiscated. Where the circumstances are serious, any person directly responsible or any other person who are directly involved shall be subject to |
| Article 74 Where any staff member of the government organs for patent administration or of other related government organs constitutes a crime by ignoring his duty, abusing his official power, acting wrongfully out of personal considerations or committing fraudulent acts, he shall be subject to criminal sanction. If a crime is not constituted, he shall be subject to disciplinary sanction according to law. |
(Amended) Article 80 Where any staff member of the government organs for patent administration or of other related government organs constitutes a crime by ignoring his duty, abusing his official power, acting wrongfully out of personal considerations or committing fraudulent acts, he shall be subject to criminal sanction. If a crime is not constituted, he shall be subject to |
| CHAPTER VIII SUPPLEMENTARY PROVISIONS | CHAPTER VIII SUPPLEMENTARY PROVISIONS |
| Article 75 Any application for a patent filed with, and any other proceedings before, the patent administrative organ under the State Council shall be subject to the payment of a fee as prescribed. | Article 81 Any application for a patent filed with, and any other proceedings before, the patent administrative organ under the State Council shall be subject to the payment of a fee as prescribed. |
| Article 76 This Law shall enter into force on April 1, 1985. | Article 82 This Law shall enter into force on April 1, 1985. |