(Adopted at the 4th Meeting of the Standing Committee of the Sixth National People’s Congress onMarch 12, 1984; amended for the first time in accordance with the Decision on Amending thePatent Law of the People’s Republic of China at the 27th Meeting of the Standing Committee of theSeventh National People’s Congress on September 4, 1992; amended for the second time inaccordance with the Decision on Amending the Patent Law of the People’s Republic of China at the17th Meeting of the Standing Committee of the Ninth National People’s Congress on August 25,2000; amended for the third time in accordance with the Decision on Amending the Patent Law ofthe People’s Republic of China at the 6th Meeting of the Standing Committee of the EleventhNational People’s Congress on December 27, 2008; amended for the fourth time in accordancewith the Decision on Amending the Patent Law of the People’s Republic of China at the 22ndMeeting of the Standing Committee of the Thirteenth National People’s Congress on October 17,2020)
Contents
Chapter I General Provisions
Chapter II Requirements for Granting Patent Rights
Chapter III Applications for Patents
Chapter IV Examination and Approval of Patent Applications
Chapter V Terms, Termination and Invalidation of Patent Rights
Chapter VI Special License for the Exploitation of a Patent
Chapter VII Protection of Patent Rights
Chapter VIII Supplementary Provisions
Chapter I
General Provisions
Article 1.
This Law is enacted to protect the lawful rights and interests of patentees, to encourageinvention-creation, to promote the exploitation of invention-creation, to enhance innovationcapability, and to promote the advancement of science and technology and the development ofeconomy and society.
Article 2.
For the purposes of this Law, “invention-creations” mean inventions, utility models anddesigns.
“Invention” means any new technical solution proposed for a product, a process or theimprovement thereof.
“Utility model” means any new technical solution proposed for the shape, the structure, or theircombination, of a product, which is fit for practical use.
“Design” means, with respect to an overall or partial product, any new design of the shape, thepattern, or their combination, or the combination of the colour with shape or pattern, which is rich inan aesthetic appeal and is fit for industrial application.
Article 3.
The patent administration department under the State Council shall be responsible forthe administration of the patent-related work throughout the country. It shall accept and examinepatent applications in a uniform way, and grant patent rights in accordance with law.
The departments in charge of patent affairs under the people’s governments of provinces,autonomous regions and municipalities directly under the Central Government shall be responsiblefor the administrative work concerning patents within their respective administrative areas.
Article 4.
Where an invention-creation for which a patent is applied for relates to national securityor other major interests of the State and confidentiality needs to be maintained, the patentapplication shall be handled in accordance with the relevant prescriptions of the State.
Article 5.
No patent right shall be granted for any invention-creation that violates laws or socialmorality or that is detrimental to the public interests.
No patent right shall be granted for any invention-creation where the acquisition or utilization of thegenetic resources, on which the development of the invention-creation relies, violates theprovisions of laws or administrative regulations.
Article 6.
An invention-creation that is accomplished in the course of performing the duties of anemployee, or mainly by using the material and technical conditions of an employer, is a serviceinvention-creation. For a service invention-creation, the right to apply for a patent belongs to theemployer. After such application is approved, the employer shall be the patentee. The employer
may, in accordance with the law, dispose of the right to apply for a patent for its service invention-creation and the patent right, thereby facilitating the exploitation and utilization of the relevantinvention-creation.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor ordesigner. After the application is approved, the inventor or designer shall be the patentee.
For an invention-creation that is accomplished by using the material and technical conditions of anemployer, if the employer has concluded a contract with the inventor or designer providing theownership of the right to apply for the patent or the ownership of the patent right, such provisionshall prevail.
Article 7.
No entity or individual may prevent the inventor or designer from filing a patentapplication for a non-service invention-creation.
Article 8.
For an invention-creation accomplished by two or more entities or individuals incollaboration, or accomplished by an entity or an invention-creation accomplished by an entity orindividual in execution of a commission given to it or him by another entity or individual, the right toapply for a patent belongs, unless otherwise agreed upon, to the entity or individual that hasaccomplished the invention-creation, or to the entities or individuals that have accomplished theinvention-creation in collaboration. After the application is approved, the entity(s) or individual(s)that has(have) filed the application shall be the patentee(s).
Article 9.
For any identical invention-creation, only one patent right shall be granted. However,where the same applicant files applications for both a utility model patent and an invention patentwith regard to the identical invention-creation on the same day, if the utility model patent grantedearlier has not been terminated and the applicant declares to abandon the utility model patent, theinvention patent may be granted.
If two or more applicants file patent applications for the identical invention-creation respectively, thepatent right shall be granted to the applicant whose application was filed first.
Article 10.
The right to file a patent application and a patent right may be transferred.
Where a Chinese entity or individual transfers the right to file a patent application or a patent rightto a foreigner, a foreign enterprise or any other foreign organization, the transfer shall go throughthe formalities in accordance with the relevant laws and administrative regulations.
Where the right to file a patent application or a patent right is transferred, the parties concernedshall enter into a written contract and register it with the patent administration department under theState Council. The patent administration department under the State Council shall make anannouncement about the registration. The transfer of the right to file a patent application or thepatent right shall take effect as of the date of registration.
Article 11.
After the grant of the patent for an invention or an utility model, except where otherwiseprovided for in this Law, no entity or individual may, without the authorization of the patentee,
exploit the patentee’s patent, that is, for production or business purposes, manufacture, use, offerto sell, sell or import the patented product, or use the patented process, and use, offer to sell, sellor import the product directly obtained by the patented process.
After the grant of the patent for an design, no entity or individual may, without the authorization ofthe patentee, exploit the patentee’s patent, that is, for production or business purposes,manufacture, offer to sell, sell or import the products incorporating the patentee’s patented design.
Article 12.
Any entity or individual exploiting the patent of another person shall enter into a licensecontract for exploitation with the patentee and pay the patentee a royalty for the exploitation of thepatent. The licensee has no right to authorize any entity or individual, other than that referred to inthe contract, to exploit the patent.
Article 13.
After the publication of an invention patent application, the applicant may require theentity or individual exploiting the said invention to pay an appropriate amount of royalties.
Article 14.
Where the co-owners of the right to file a patent application or of the patent right havereached an agreement on the exercise of the right, the agreement shall prevail. In the absence ofsuch an agreement, any co-owner may independently exploit the patent or license another personto exploit the patent through a non-exclusive license; any royalty for the exploitation obtained fromlicensing others to exploit the patent shall be distributed among the co-owners.
Except for the circumstances as provided for in the preceding paragraph, the exercise of the co-owned right to file a patent application or the co-owned patent right shall be subject to the consentof all co-owners.
Article 15.
The entity that is granted a patent right shall reward the inventor or designer of aservice invention-creation. After such patent is exploited, the entity shall pay the inventor ordesigner a reasonable remuneration based on the extent of spreading and application as well asthe economic benefits yielded.
The State encourages the entity that is granted a patent right to implement property rightincentives, by such means as offering of stocks, options, and dividends, so that the inventor ordesigner can reasonably share the benefits of innovation.
Article 16.
The inventor or designer shall have the right to be named as such in the patentdocuments.
The patentee shall have the right to have his patent indication displayed on the patented product oron the package of that product.
Article 17.
Where any foreigner, foreign enterprise or other foreign organization without a habitualresidence or business office in China files a patent application in China, the application shall behandled under this Law in accordance with the agreements concluded between the country towhich the applicant belongs and China, or in accordance with the international treaties to which
both the countries are parties, or in accordance with this Law on the basis of the principle ofreciprocity.
Article 18.
Where any foreigner, foreign enterprise or other foreign organization without a habitualresidence or business office in China files a patent application or handles other patent-relatedmatters in China, he or it shall entrust a legally established patent agency with the application orsuch matters.
Where any Chinese entity or individual files a patent application or handles other patent-relatedmatters in China, he or it may entrust a legally established patent agency with the application orsuch matters.
The patent agency shall abide by laws and administrative regulations, and handle patentapplications and other patent-related matters as entrusted by its principals. In respect of thecontents of the principal’s invention-creations, except for those that have been published orannounced for patent application, the agency shall be obligated to keep them confidential. Thespecific measures for administration of the patent agencies shall be formulated by the StateCouncil.
Article 19.
Where any entity or individual intends to file a patent application abroad in a foreigncountry for any an invention or utility model accomplished in China, it or he shall submit the matterto request the patent administration department under the State Council for confidentialityexamination in advance. The procedures and duration etc. of the confidentiality examination shallbe carried out in accordance with the regulations of the State Council.
Any Chinese entity or individual may file for an international patent application in accordance withthe relevant international treaties to which the People’s Republic of China is a party. If an applicantfiles an international patent application, he or it shall abide by the provisions of the precedingparagraph.
The patent administration department under the State Council shall deal with international patentapplications in accordance with the relevant international treaties to which the People’s Republic ofChina is a party, this Law and the relevant regulations of the State Council.
For an invention or utility model, if a patent application has been filed in a foreign country inviolation of the provisions of the first paragraph of this Article, it shall not be granted a patent rightwhile filing a patent application in China.
Article 20.
The principle of good faith shall be followed when filing a patent application andexercising patent rights. The patent rights may not be abused to harm the public interests or thelawful rights and interests of others.
For any misuse of patent rights for eliminating or restricting competition, if it constitutes amonopolistic conduct, it shall be dealt with in accordance with the Anti-Monopoly Law of thePeople’s Republic of China.
Article 21.
The patent administration department under the State Council shall deal with any patentapplication and patent-related request in accordance with the law and in conformity with therequirements of objectivity, fairness, accuracy and timeliness.
The patent administration department under the State Council shall strengthen the construction of apublic service system for patent-related information, release patent-related information in acomplete, accurate, and timely manner, provide basic data of patents, and publish patent gazetteson a regular basis, in order to promote dissemination and utilization of patent information.
Prior to the publication or announcement of a patent application, the staff members of the patentadministration department under the State Council and the related personnel shall be obligated tokeep its contents confidential.
Chapter II
Requirements for Granting Patent Rights
Article 22.
Any invention or utility model for which a patent right is to be granted shall meet therequirements of novelty, inventiveness and practical use.
Novelty means that, the invention or utility model does not form part of the prior art; no entity orindividual has filed a patent application for the identical invention or utility model with the patentadministration department under the State Council before the filing date and the content of theapplication is disclosed in patent application documents published or patent documents announcedafter the filing date.
Inventiveness means that, as compared with the prior art, the invention has prominent substantivefeatures and represents an obvious progress, and that the utility model has substantive featuresand represents a progress.
Practical use means that, the invention or utility model can be manufactured or used and canproduce positive results.
For the purpose of this Law, “the prior art” refers to any technology known to the publicdomestically and/or abroad before the filing date of patent application.
Article 23.
Any design for which a patent right is to be granted shall not be a prior design; no entityor individual has filed a patent application for the identical design with the patent administrationdepartment under the State Council before the filing date and the content of the application isdisclosed in patent documents announced after the filing date.
Any design for which a patent right may be granted shall significantly differ from a prior design orthe combination of prior design features.
Any design for which a patent right is granted must not conflict with the lawful rights acquired byany other person before the filing date.
For the purpose of this Law, “a prior design” refers to any design known to the public domesticallyand/or abroad before the filing date.
Article 24.
Within six months before the filing date, an invention-creation for which a patentapplication is filed does not lose its novelty under any of the following circumstances:
(1) where it was made public for the first time for the purpose of the public interests when a state ofemergency or an extraordinary situation occurred in the country.
(2) where it was exhibited for the first time at an international exhibition sponsored or recognized bythe Chinese Government;
(3) where it was published for the first time at a prescribed academic or technological conference;
(4) where its contents are divulged by another person without the consent of the applicant.
Article 25.
No patent right shall 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 and plant varieties;
(5) nuclear transformation methods and substances obtained by means of nuclear transformation;
(6) designs of two-dimensional printing goods, made of the pattern, the color or the combination ofthe two, which serve mainly as indicators.
The patent right may, in accordance with the provisions of this Law, be granted for the productionmethods of the products specified in Subparagraph (4) of the preceding paragraph.
Chapter III
Applications for Patents
Article 26.
Where a patent application for an invention or utility model is filed, documents such as arequest, a description and its abstract, and claims shall be submitted.
The request shall state the name of the invention or utility model, the name of the inventor, thename or title and the address of the applicant and other related matters.
The description shall contain a clear and comprehensive description of the invention or utility modelso as to enable a person skilled in the relevant field of technology to carry it out; where necessary,drawings shall be attached to it. The abstract shall state briefly the main technical points of theinvention or utility model.
The claims shall be based on the description and shall define the scope of the patent protectionsought for in a clear and concise manner.
Where an invention-creation is accomplished by relying on genetic resources, the applicant shallindicate, in the patent application documents, the direct and original source of the geneticresources. Where the applicant fails to indicate the original source, he or it shall state the reasonsthereof.
Article 27.
Where a patent application for a design is filed, documents such as a request, drawingsor photographs of the design and a brief description of the design shall be submitted.
The relevant drawings or photographs submitted by the applicant shall clearly indicate the design ofthe product for which patent protection is sought.
Article 28.
The date on which the patent application documents are received by the patentadministration department under the State Council shall be the filing date. If the applicationdocuments are delivered by post, the date of the postmark shall be the filing date.
Article 29.
Where, within twelve months from the date on which any applicant first filed in a foreigncountry a patent application for an invention or utility model, or within six months from the date onwhich any applicant first filed in a foreign country a patent application for a design, he or it files inChina a patent application for the same subject matter, he or it may enjoy the right of priority inaccordance with the agreements concluded between the foreign country and China, or inaccordance with the international treaties to which both countries are parties, or on the basis of theprinciple of mutual recognition of the right of priority.
Where, within twelve months from the date on which any applicant first filed in China a patentapplication for an invention or utility model, or within six months from the date on which anyapplicant first filed in China a patent application for a design, he or it files with the patentadministration department under the State Council a patent application for the same subject matter,he or it may enjoy the right of priority.
Article 30.
If any applicant claims the right of priority for an invention patent or a utility modelpatent, he or it shall make a written declaration when the patent application for an invention or utilitymodel is filed, and submit, within sixteen months from the date on which the applicant first filed theapplication, a copy of the patent application documents which were filed for the first time.
If any applicant claims the right of priority for a design patent, he or it shall make a writtendeclaration when the patent application for a design is filed, and submit, within three months, acopy of the patent application documents which were filed for the first time.
If the applicant fails to make the written declaration or to meet the time limit for submitting the copyof the patent application documents, the claim to the right of priority shall be deemed not to havebeen made.
Article 31.
A patent application for an invention or utility model shall be limited to one invention orutility model. Two or more inventions or utility models belonging to a single general inventiveconcept may be filed as one application.
A patent application for a design shall be limited to one design. Two or more similar designs for thesame product or two or more designs which are incorporated in products belonging to the samecategory and sold or used in sets may be filed as one application.
Article 32.
An applicant may withdraw his or its patent application at any time before the patentright is granted.
Article 33.
An applicant may amend his or its patent application documents, however, theamendment to the patent application documents for an invention or utility model may not go beyondthe scope of disclosure contained in the original description and claims, and the amendment to thepatent application documents for a design may not go beyond the scope of the disclosure as shownin the original drawings or photographs.
Chapter IV
Examination and Approval of Patent Applications
Article 34.
Where, after receiving a patent application for an invention, the patent administrationdepartment under the State Council finds that the application meets the requirements of this Lawafter preliminary examination, it shall publish the application promptly after the expiration ofeighteen months from the filing date. Upon the request of the applicant, the patent administrationdepartment under the State Council may publish the application earlier.
Article 35.
Within three years from the filing date, the patent administration department under theState Council may conduct a substantive examination of the application upon a request made bythe applicant for a patent for invention at any time. If the applicant, without any justified reason, failsto request a substantive examination at the expiration of the time limit, the application shall bedeemed to have been withdrawn.
When the patent administration department under the State Council deems it necessary, it may, onits own initiative, conduct a substantive examination of any patent application for an invention.
Article 36.
When the applicant for an invention patent requests a substantive examination, he or itshall submit reference materials relating to the invention existing prior to the filing date.
If a patent application for an invention that has been filed in a foreign country, the patentadministration department under the State Council may ask the applicant to submit, within aspecified time limit, materials concerning any search made for the purpose of examining theapplication in that country, or concerning the results of any examination made in that country. If, atthe expiration of the specified time limit, the said materials are not submitted without any justifiedreason, the application shall be deemed to have been withdrawn.
Article 37.
After the patent administration department under the State Council has conducted asubstantive examination of the patent application for an invention, if it finds that the application isnot in conformity with the provisions of this Law, it shall notify the applicant and require him or it tostate opinions within a specified time limit or to amend the application. If the applicant fails to stateopinions at the expiration of the specified time limit without any justified reason, the applicationshall be deemed to have been withdrawn.
Article 38.
After the applicant states his or its opinions on or makes amendment to the patentapplication for an invention, the patent administration department under the State Council still findsthat the patent application for an invention is not in conformity with the provisions of this Law, theapplication shall be rejected.
Article 39.
Where no cause for rejection is found after the substantive examination of the patentapplication for an invention, the patent administration department under the State Council shallmake a decision to grant the patent right for invention, issue the certificate of patent for invention,and meanwhile make a registration and announcement about it. The patent right for inventionshall take effect as of the date of the announcement.
Article 40.
Where no cause for rejection is found after the preliminary examination of the patentapplication for a utility model or design, the patent administration department under the StateCouncil shall make a decision to grant the patent right for utility model or design, issue acorresponding patent certificate, and meanwhile make a registration and announcement about it.The patent right for utility model or design shall take effect as of the date of the announcement.
Article 41.
Where a patent applicant refuses to accept the decision of the patent administrationdepartment under the State Council on rejecting the application, the applicant may, within threemonths from the date of receipt of the notification, request the patent administration departmentunder the State Council to make a reexamination. The patent administration department under theState Council shall, after reexamination, make a decision and notify the patent applicant.
Where the patent applicant refuses to accept the decision of the reexamination of the patentadministration department under the State Council, it or he may, within three months from the dateof receipt of the notification, file a lawsuit in the people’s court.
Chapter V
Terms, Termination and Invalidation of Patent Rights
Article 42.
The term of patent right for inventions shall be twenty years, the term of patent right forutility models shall be ten years, and the term of patent right for designs shall be fifteen years, allcommencing from the filing date.
Where a patent right for an invention is granted after the expiration of four years from the filing dateand after the expiration of three years from the date of the request for substantive examination ofthe application, the patent administration department under the State Council shall, at the request
of the patentee, extend the term of the patent to compensate for the unreasonable delay in thegranting process of the invention, except for the unreasonable delay caused by the applicant.
In order to compensate for the time taken for the review and approval process before the marketingof a new pharmaceutical product, the patent administration department under the State Councilshall, at the request of the patentee, extend the term of the new pharmaceutical-related inventionwhich has been approved for marketing in China. The compensation term may not be more thanfive years, and the total effective term of the patent right may not be more than fourteen years fromthe date of marketing approval.
Article 43.
The patentee shall pay an annual fees beginning with the year in which the patent rightis granted.
Article 44.
Under any of the following circumstances, the patent right shall be terminated beforethe expiration of its term:
(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 terminated before the term expires, the patent administration department under theState Council shall register and announce such termination.
Article 45.
Beginning from the date of the announcement of the grant of a patent right by the patentadministration department under the State Council, any entity or individual considers that the grantof the patent right is not in conformity with the relevant provisions of this Law, it or he may requestthe patent administration department under the State Council to declare the patent right invalid.
Article 46.
The patent administration department under the State Council shall, in a timely manner,examine the request for declaring invalidation of a patent right invalid, make a decision on it, andnotify the person who made the request and the patentee of its decision. The decision on declaringthe patent right invalid shall be registered and announced by the patent administration departmentunder the State Council.
Where the party concerned refuses to accept the decision of the patent administration departmentunder the State Council on declaring the patent right invalid or on upholding the patent right, he or itmay file a lawsuit in the people’s court within three months from the date of receipt of thenotification of the decision. The people’s court shall notify the person who is the opponent party inthe invalidation procedure to participate in the litigation as a third party.
Article 47.
Any patent right that has been declared invalid is deemed to be non-existent from thebeginning.
The decision on declaring the patent right invalid shall have no retroactive effect on any judgmentor mediation statement on patent infringement which has been made and enforced by the people’scourt, on any decision concerning the handling of a dispute over patent infringement which hasbeen performed or compulsorily executed, or on any patent exploitation licensing contract or patent
right transfer contract which has been performed–prior to the declaration of the invalidation of thepatent right; however, the damage caused to other persons in bad faith by the patentee shall becompensated.
Where the monetary damage for patent infringement, the royalties for patent exploitation or thefees for the transfer of the patent right is not refunded pursuant to the provisions of the precedingparagraph, but such non-refund is obviously contrary to the principle of fairness, refund shall bemade fully or partly.
Chapter VI
Special License for the Exploitation of a Patent
Article 48.
The patent administration department under the State Council and the departments incharge of patent affairs of the local people’s government shall, in conjunction with the relevantdepartments at the same level, take measures to strengthen patent public services and promotethe exploitation and utilization of patents.
Article 49.
Where any patent for invention of a State-owned enterprise or institution, is of greatsignificance to the interest of the State or to the public interests, the relevant competentdepartments under the State Council and the people’s governments of provinces, autonomousregions or municipalities directly under the Central Government may, after approval by the StateCouncil, decide that the patented invention be spread and applied within the approved scope, andallow designated entities to exploit the invention. The exploiting entity shall, in accordance with theregulations of the State, pay a royalty to the patentee.
Article 50.
Where the patentee voluntarily declares in writing to the patent administrationdepartment under the State Council that it or he is willing to license any entity or individual toexploit its or his patent, and specifies the payment method and the standard of the royalty, thepatent administration department under the State Council shall make an announcement andimplement an open license. Where the patentee submits an open license statement for its or hisutility model and design, it or he shall attach an evaluation report of the patent.
Where the patentee withdraws the open license statement, the withdrawal shall be submitted inwriting and be announced by the patent administration department under the State Council. If theopen license statement is withdrawn by announcement, the validity of the open license grantedearlier shall not be affected.
Article 51.
Where an entity or individual notifies the patentee of its or his willing to implement anopen-licensed patent in writing and pays the royalty in accordance with the announced paymentmethod and standard for the royalty, it or he obtains the patent license.
During the implementation period of the open license, the annual fee paid by the patentee shall bereduced or exempted accordingly.
The patentee whose patent is under an open license may grant a general license after negotiatingwith the licensee on the royalty, however, the patentee may not grant an exclusive or sole licensefor that patent.
Article 52.
Where a dispute arises over the implementation of an open license, the parties shallresolve it through consultation. Where the parties are unwilling to consult with each other or wherethe consultation fails, they may either request the patent administration department under the StateCouncil to mediate the matter, or file a lawsuit in the people’s court.
Article 53.
Under any of the following circumstances, the patent administration department underthe State Council may, upon the application made by an entity or individual which possesses theconditions for exploitation, grant a compulsory license to exploit an invention or utility model:
(1) where the patentee, after the expiration of three years from the date of the grant of the patentright and the expiration of four years from the filing date, has not exploited or has not sufficientlyexploited the patent without any justified reason; or
(2) where the exercise of the patent right by the patentee is confirmed as a monopolistic conduct inaccordance with law, and its negative impact on competition needs to be eliminated or reduced.
Article 54.
Where a national emergency or any extraordinary state of affairs occurs, or where thepublic interests so require, the patent administration department under the State Council may granta compulsory license to exploit the patent for invention or utility model.
Article 55.
For the purposes of public health, the patent administration department under the StateCouncil may grant a compulsory license for manufacture of a pharmaceutical product, for which apatent right has been granted, and for exporting it to the countries or regions that comply with theprovisions of the relevant international treaties to which the People’s Republic of China is a party.
Article 56.
Where the invention or utility model, for which a patent right has been granted, involvesa major technological advancement of remarkable economic significance, compared with aninvention or utility model for which a patent right has been granted earlier, and the exploitation ofthe later invention or utility model depends on the exploitation of the earlier invention or utilitymodel, the patent administration department under the State Council may, upon the request of thepatentee of the later patent, grant a compulsory license to exploit the earlier invention or utilitymodel.
In the case of granting a compulsory license in accordance with the provisions of the precedingparagraph, the patent administration department under the State Council may, upon the request ofthe patentee of the earlier patent, also grant a compulsory license to exploit the later invention orutility model.
Article 57.
Where the invention-creation involved in a compulsory license is a semi-conductortechnology, the exploitation thereof shall be limited to the purpose of the public interests and to thecircumstances as provided for in Subparagraph (2) of Article 53 of this Law.
Article 58.
Except for the compulsory licenses granted in accordance with the provisions ofSubparagraph (2) of Article 53 or Article 55 of this Law, compulsory licenses shall mainly beexercised for the supply to the domestic market.
Article 59.
Any entity or individual applying for a compulsory license in accordance with theprovisions of Subparagraph (1) of Article 53 or Article 56 of this Law shall provide evidence to provethat it or he has made a request for a license from the patentee to exploit the patent underreasonable terms, but has failed to obtain such a license within a reasonable period of time.
Article 60.
The decision made by the patent administration department under the State Council ongranting a compulsory license for exploitation shall be notified to the patentee in a timely mannerand shall be registered and announced.
In the decision on granting the compulsory license for exploitation, the scope and duration of theexploitation shall be specified on the basis of the reasons justifying the grant. When thecircumstances which led to such compulsory license cease to exist and no longer occur, the patentadministration department under the State Council shall, at the request of the patentee, make adecision to terminate the compulsory license after examination.
Article 61.
Any entity or individual that is granted a compulsory license for exploitation does nothave an exclusive right to exploit, nor has it or he the right to allow others to exploit.
Article 62.
The entity or individual that is granted a compulsory license for exploitation shall payreasonable royalties to the patentee, or deal with the issue of royalties in accordance with theprovisions of the relevant international treaties to which the People’s Republic of China is a party.Where royalties are paid, the amount of royalties shall be negotiated by both parties. Where theparties fail to reach an agreement, the patent administration department under the State Councilshall make a ruling.
Article 63.
Where the patentee refuses to accept the decision of the patent administrationdepartment under the State Council on granting a compulsory license for exploitation, or where thepatentee or the entity or individual that is granted the compulsory license for exploitation refuses toaccept the ruling made by the patent administration department under the State Council regardingthe royalties for the compulsory license for exploitation, it or he may, within three months from thedate of receipt of the notification, file a lawsuit in the people’s court.
Chapter VII
Protection of Patent Rights
Article 64.
For the patent right of an invention or a utility model, the scope of protection shall beconfined to the content of the claims. The description and the drawings attached may be used toexplain the content of the claims.
For the patent right for design, the scope of protection shall be confined to the design of the productas shown in the drawings or photographs. The brief description may be used to explain the design
of the product as shown in the drawings or photographs.
Article 65.
Where a dispute arises as a result of the exploitation of a patent without theauthorization of the patentee, that is, the infringement of the patentee’s patent right, it shall beresolved through consultation between the parties. Where the parties are unwilling to consult witheach other or where the consultation fails, the patentee or any interested party may file a lawsuit inthe people’s court, or request the departments in charge of patent-related work to deal with thedispute. When the department in charge of patent-related work dealing with the dispute considersthat the infringement is established, it may order the infringer to stop the infringing act immediately.If the infringer refuses to accept the order, he may, within 15 days from the date of receipt of thenotification of the order, file a lawsuit in the people’s court in accordance with the AdministrativeProcedure Law of the People’s Republic of China. If the infringer neither files a lawsuit nor stopsthe infringing act at the expiration of the period of time, the department in charge of patent-relatedwork may file an application with the people’s court for compulsory execution. At the request of theparty concerned, the department in charge of patent-related work dealing with the dispute maycarry out mediation concerning the amount of compensation for the patent right infringement. If themediation fails, the parties may file a lawsuit in the people’s court in accordance with the CivilProcedure Law of the People’s Republic of China.
Article 66.
Where a patent infringement dispute involves a patent for an invention for amanufacturing process of a new product, the entity or individual manufacturing the identical productshall provide evidence to prove that the manufacturing process used in the manufacture of its or hisproduct is different from the patented process.
Where a patent infringement dispute involves a patent for a utility model or a design, the people’scourt or the department in charge of patent-related work may ask the patentee or any interestedparty to furnish a patent right evaluation report made by the patent administration department underthe State Council after having conducted search, analysis and evaluation of the relevant utilitymodel or design, and use it as evidence for hearing or dealing with the patent infringement dispute;the patentee or any interested party or the alleged infringer may also voluntarily furnish the patentright evaluation report.
Article 67.
In a patent infringement dispute, if the alleged infringer has evidence to prove that thetechnology or design exploited by it or him forms part of the prior art or prior design, suchexploitation shall not constitute an infringement of the patent right.
Article 68.
Where any person counterfeits a patent of another person, he shall, in addition tobearing his civil liabilities in accordance with law, be ordered by the department in charge of patentenforcement to make rectifications, and the department shall make the matter known to the public.His illegal earnings shall be confiscated and, in addition, he may be imposed on a fine of not morethan five times his illegal earnings. If there are no illegal earnings or the illegal earnings are lessthan RMB 50,000 Yuan, a fine of not more than RMB 250,000 Yuan may be imposed on him.Where the infringement constitutes a crime, he shall be investigated for his criminal responsibility inaccordance with law.
Article 69.
When investigating and handling the suspected act of counterfeiting a patent, thedepartment in charge of patent enforcement shall have the right to take the following measuresbased on the evidence obtained:
(1) To inquire the parties concerned, and investigate the circumstances related to the suspectedillegal act;
(2) To carry out an on-the-spot inspection of the site where the party’s suspected illegal act iscommitted;
(3) To consult and duplicate the contracts, invoices, account books and other relevant materialsrelated to the suspected illegal act;
(4) To examine the products related to the suspected illegal act;
(5) To seal up or detain the products proved to be produced by the counterfeited patent.
When dealing with the patent infringement disputes at the request of the patentee or the interestedparty, the department in charge of patent-related work may take measures listed in Subparagraph(1), (2) and (4) of the preceding paragraph.
When the department in charge of patent enforcement or the department in charge of patent-related work exercises its functions and powers as stipulated in the preceding two paragraphs inaccordance with law, the parties concerned shall provide assistance and cooperation and shall notrefuse to do so or create obstacles.
Article 70.
The patent administration department under the State Council may, at the request of thepatentee or any interested party, deal with patent infringement disputes that have a major impactthroughout the country.
When dealing with patent infringement disputes at the request of the patentee or any interestedparty, the department in charge of patent-related work of the local people’s government may dealwith the cases of infringement of the same patent right within its administrative area in a combinedmanner; for cases infringing the same patent right across administrative areas, it may request thedepartment in charge of patent-related work of the local people’s government at a higher level todeal with the matter.
Article 71.
The amount of compensation for patent right infringement shall be determined on thebasis of the actual losses suffered by the right holder as a result of the infringement or the profitsearned by the infringer as a result of the infringement. Where it is difficult to determine the lossessuffered by the right holder or the profits earned by the infringer, the amount shall be reasonablydetermined by reference to the multiple of the amount of the royalties for the patent license. Forintentional infringement of a patent right, if the circumstances are serious, the amount ofcompensation may be determined at not less than one time and not more than five times theamount determined in accordance with the above-mentioned method.
Where it is difficult to determine the losses suffered by the right holder, the profits earned by theinfringer and the royalties for the patent license, the people’s court may determine the amount ofcompensation, which is not less than RMB 30,000 Yuan and not more than RMB 5,000,000 Yuan,in light of such factors as the type of the patent right, the nature and the circumstances of theinfringing act.
The amount of compensation shall also include the reasonable expenses of the right holder paid forputting an end to the infringement.
In order to determine the amount of compensation, under the circumstance that the right holder hastried its or his best to provide evidence, and the account books or materials related to the patentinfringement are mainly at the hands of the infringer, the people’s court may order the infringer toprovide such account books or materials. Where the infringer refuses to provide the account booksor materials, or provides false account books or materials, the people’s court may determine theamount of compensation by reference to the right holder’s claims and the evidence provided.
Article 72.
Where the patentee or any interested party has evidence to prove that another personis infringing or is about to infringe its or his patent right or hinders the realization of the right, which,unless being stopped in time, may cause irreparable damage to his lawful rights and interests, it orhe may, before filing a lawsuit, apply to the people’s court for adopting measures for propertypreservation, ordering to do certain acts or to prohibit certain acts in accordance with the law.
Article 73.
In order to stop patent infringement, in cases where the evidence might be destroyed orwhere it would be difficult to obtain in the future, the patentee or the interested party may, beforefiling a lawsuit, apply to the people’s court for evidence preservation in accordance with the law.
Article 74.
The period of limitation for action against the infringement of a patent right is threeyears, beginning from the date on which the patentee or interested party knows or should haveknown of the infringing act and the infringer.
Where an appropriate royalty is not paid for exploiting an invention during the period from thepublication of the application to the grant of the patent right, the limitation period for taking legalaction by the patentee for requesting the payment of royalties is three years, beginning from thedate on which the patentee knows or should have known of the exploitation of his or its invention byanother person. However, where the patentee knows or should have known of the exploitation ofthe invention before the patent right is granted, the period of limitation for action shall begin fromthe date when the patent right is granted.
Article 75.
None of the following shall be deemed as infringement of the patent right:
(1) where, after the sale of a patented product or a product acquired directly in accordance with apatented process by the patentee or any entity or individual authorized by the patentee, any otherperson uses, offers to sell, sells, or imports that product;
(2) where, before the filing date of the patent application, any person who has alreadymanufactured the identical product, used the identical process, or made necessary preparations for
its manufacturing or using, continues to manufacture or use it only within the original scope;
(3) where any foreign means of transport, which temporarily passes through the territory, territorialwaters or territorial airspace of China, uses the relevant patent in its devices or installations for itsown needs in accordance with the agreements concluded between the country to which the foreignmeans of transport belongs and China, or in accordance with the international treaties to whichboth countries are parties, or on the basis of the principle of reciprocity;
(4) where the relevant patent is used specially for the purposes of scientific research andexperimentation; or
(5) where for the purposes of providing information needed for the administrative examination andapproval, any person manufactures, uses, or imports patented drugs or patented medicalapparatus and instruments, or any other person manufactures or imports patented drugs orpatented medical apparatus and instruments especially for that person.
Article 76.
In the review and approval process before the marketing of a pharmaceutical product,where the applicant for marketing approval of the pharmaceutical product has any disputes overthe relevant patent right associated with the pharmaceutical product applied for registration with therelevant patentee or interested party, the party concerned may file a lawsuit before the People’sCourt and request a judgment on whether the technical solution related to the pharmaceuticalproduct that is applied for registration falls within the protection scope of any pharmaceuticalproduct patent right owned by others. The medical product regulatory department under the StateCouncil may, within a prescribed time limit, make a decision on whether to suspend the marketingapproval of the pharmaceutical product according to the effective judgment or written order of thePeople’s Court.
The applicant for marketing approval of the pharmaceutical product, the relevant patentee or theinterested party may also petition the patent administration department under the State Council foran administrative adjudication on the disputes over the patent right associated with the drug appliedfor registration.
The medical products regulatory department under the State Council shall, in conjunction with thepatent administration department under the State Council, formulate specific cohesive measuresfor patent right dispute resolutions at the stages of pharmaceutical product marketing licenseapproval and pharmaceutical product marketing license application, which shall be implementedafter the approval of the State Council.
Article 77.
Any person who, for production and business purposes, uses, offers to sell or sells apatent-infringing product, without knowing that it is manufactured and sold without the authorizationof the patentee, may not be liable for compensation provided that he can prove the legitimatesource of the product.
Article 78.
Where any person, in violation of the provisions of Article 19 of this Law, files a patentapplication in a foreign country, thereby divulging a State secret, the entity to which he belongs or
the competent authority at the higher level shall impose on him an administrative sanction; if acrime is established, he shall be investigated for his criminal responsibility in accordance with law.
Article 79.
The departments in charge of patent-related work under the people’s governments maynot take part in recommending any patented product for sale to the public or any such commercialactivities.
Where a department in charge of patent-related work under the people’s governments violates theprovisions of the preceding paragraph, it shall be ordered to make a rectification and to eliminateadverse effects by the department at the higher level or the supervisory organ. The illegal earnings,if any, shall be confiscated. Where the circumstances are serious, the principal leading persondirectly in charge and other persons who are directly responsible shall be given sanctions inaccordance with the law.
Article 80.
Where a State functionary working for patent administration or any other Statefunctionary concerned neglects his duties, abuses his powers, or engages in malpractice forpersonal gain, which constitutes a crime, shall be investigated for his criminal responsibility inaccordance with law. If the case is not serious enough to constitute a crime, he shall be givensanctions in accordance with law.
Chapter VIII
Supplementary Provisions
Article 81.
To file a patent application or go through other formalities with the patent administrativedepartment under the State Council, fees shall be paid as prescribed.
Article 82.
This Law shall go into effect on 1 April 1985.
http://en.npc.gov.cn.cdurl.cn/2020-10/17/c_674693.htm
No responses yet