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Focus on the Amended Patent Law

Source: China IP News

On October 17, the 22nd Session of the Standing Committee of the 13th National People's Congress(NPC) approved the newly amended patent law, which will be effective on June 1 next year. The amendment, which had been drawing keen attention from foreign and Chinese innovators and the public at large since its start,aims to step up protection over the legitimate interests of patent holders, boost innovators' confidence in patent protection, and fully arouse an innovative spirit throughout society. We have assembled some of the most frequent asked questions and will continue our series of reports on this topic.


Why was the law revised in the first place?  What is behind the revision?

China has been attaching great importance to IP protection. At present, The Chinese economy is at a critical moment of shifting growth mode, optimizing economic structure and changing growth momentum. Innovation is the primary driving force leading development. The enhancement of IP protection and independent innovation capacity has become China's inherent need to accelerate the shifting of economic growth mode and implementation of the innovation-driven development strategy. The current patent law of China became operational in 1985 and was amended three times in 1992, 2000 and 2008 respectively, having played an important role in encouraging and protecting inventions and inspiring innovation. As the situation evolved, there were some new challenges in the patent field. There was a gap between what the law offered and what patent right holders expected. Right holders were hamstrung by restricted access to discovery, high litigation cost and low damages. Cross-region infringements were on the rise and abuse of rights happened from time to time. Other outstanding issues included low patent transfer rate, asymmetric supply and demand of data on patent licensing and insufficient transfer services. Patent examination and grant systems had yet to be improved to meet the demand of joining relevant international treaties and further bring convenience to inventors and designers. Accordingly, it was necessary to revise the patent law.

In 2014, the then-State Intellectual Property Office commenced this fourth version and would see its draft approved by an executive meeting of the State Council on December 5, 2018. The newly amended patent law was adopted at the 22nd Session of the 13th NPC and will be officially enacted in next June.

The amendment implements the spirit of the instructions of the Party Central Committee and the State Council and aims to effectively solve the problems in practice, being of great significance in protecting legitimate interests of right holders, boosting innovators' confidence in patent protection and fully stimulating innovative vitality in society.

Spotlight Ⅱ

What are the main changes in the amendment?

The changes are mainly in three aspects. First, protection over the legitimate interests of patent holders are reinforced. Patent infringers will pay a deeper price for their acts under the provisions of one to five times of punitive damages for malicious or intentional infringement and the upper limit are driven up to five million yuan. Other changes on protection include clearer requirements on burden of proof and enforcement by local patent administrations, additions of the principle of good faith, supplementary protection certificates (SPCs) and early resolution procedure for pharmaceutical patent disputes. Second, provisions designed for refining service invention, adding a patent open license system and facilitating commercialization of patents are described, all for better use of patents. Third, some of the rules concerning the system for granting patents are also amended, including the criteria for the grace period of novelty of designs and updates on the system of evaluation reports on patentability.

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