Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
Order of the President of the People's Republic of China No.55
October 17, 2020
The Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China, which was adopted at the 22nd session of the Standing Committee of the 13th National People's Congress of the People's Republic of China on October 17, 2020, is hereby promulgated and shall come into effect as of June 1, 2021.
Xi Jinping, President of the People's Republic of China
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
(Adopted at the 22nd session of the Standing Committee of the 13th National People's Congress on October 17, 2020)
It was decided at the 22nd session of the Standing Committee of the 13th National People's Congress to make the following amendments to the Patent Law of the People's Republic of China:
I. Paragraph 4 of Article 2 is amended to read: “The term "design" refers to any new design of a product's overall or local shape, pattern or combination thereof, or combination of color and shape or pattern, which is fit for industrial application while having a sense of esthetics.”
II. Paragraph 1 of Article 6 is amended to read: “An invention-creation that is accomplished by a person in the course of executing any task for the entity to which such person belongs, or mainly through taking advantage of the entity's materials or technical resources is a service invention-creation. In terms of a service invention-creation, the right to apply for a patent therefor is vested in the entity. After the relevant application is approved, the entity shall be the patentee. The entity may legally dispose of the right to apply for a patent for its service invention-creation and the patent right, and promote the exploitation and application of the relevant invention-creation."
III. Article 14 is amended to be Article 49.
IV. Article 16 is amended to be Article 15 with a paragraph added as its Paragraph 2 to read: "The State encourages entities being granted patent rights to implement property right incentives and adopt such modes as equity, option and dividend to enable the proper sharing of innovation proceeds by inventors or designers."
V. An article is added as Article 20 to read: "Whoever applies for a patent and exercises the patent right shall follow the principle of good faith. No person may abuse the patent right to harm the public interest or the legitimate rights and interests of other persons.
"Whoever abuses the patent right to exclude or restrict competition thus constituting a monopolistic practice shall be punished in accordance with the Anti-monopoly Law of the People's Republic of China."
VI. The words “and its Patent Reexamination Board” set forth in Paragraph 1 of Article 21 is deleted.
Paragraph 2 thereof is amended to read: "The patent administrative department under the State Council shall strengthen the building of a patent information-related public service system, release patent information in a complete, accurate and timely manner, provide patent-related basic data, and publish patent gazettes on a regular basis, thus promoting the dissemination and utilization of patent information."
VII. An item is added to Article 24 as Item 1 to read: “1. in the case of any emergency or extraordinary circumstance occurring to the State, it is made public for the first time in the public interest".
VIII. Item 5, Paragraph 1 of Article 25 is amended to read: “5. nuclear transformation method and substances obtained by the method of nuclear transformation”.
IX. Paragraph 2 of Article 29 is amended to read: "Where an applicant files an application with the patent administrative department under the State Council for a patent on the same subject within 12 months from the date on which an application for a patent for any invention or utility model is filed for the first time in China or within six months from the date on which an application for a patent for a design is filed for the first time in China, it may enjoy the right of priority."
X. Article 30 is amended to read: "An applicant claiming the right of priority to a patent for any invention or utility model shall make a written statement at the time of application, and within sixteen months from the date on which an application is filed for the first time, submit a duplicate of the first-filed patent application documents.
"An applicant claiming the right of priority over any design patent shall make a written statement at the time of application and submit a duplicate of the first-filed patent application documents within three months.
Where an applicant fails to make a written statement or submit a duplicate of relevant patent application documents within the prescribed time limit, it shall be deemed as not claiming the right of priority."
XI. Article 41 is amended to read: "A patent applicant who is dissatisfied with the decision of the patent administrative department under the State Council to reject its application may request reexamination with the patent administrative department under the State Council within three months of receipt of the relevant notice. After reexamination, the patent administrative department under the State Council shall make a decision and notify the patent applicant thereof.
If the patent applicant is dissatisfied with the reexamination decision made by the patent administrative department under the State Council, it may file a lawsuit with the competent people's court within three months of receipt of the relevant notice."
XII. Article 42 is amended to read: "The duration of the patent right for an invention shall be 20 years, the duration of the patent right for a utility model shall be ten years, and that of the patent right for a design shall be 15 years, all commencing from the date of application.
Where the patent right for an invention is granted after four full years from the date of application for the invention patent and after three full years from the date of request for substantive examination, the patent administrative department under the State Council shall, at the request of the relevant patentee, make up the patent right duration in case of any unreasonable delay in granting the invention patent right, except for unreasonable delay caused by the applicant.
In order to make up the time taken up by review and approval for marketing of new drugs, the patent administrative department under the State Council shall, at the request of the relevant patentee, make up the patent right duration for invention patents pertaining to new drugs that obtain the marketing authorization in China. The make-up duration shall not exceed five years, and the total valid duration of a patent right shall not exceed 14 years after a new drug is approved for marketing."
XIII. The term “Patent Reexamination Board” set forth in Article 45 and Article 46 is amended to be “patent administrative department under the State Council”.
XIV. The title of Chapter VI is amended to read “Special Authorization for Exploitation of Patents”.
XV. An article is added as Article 48 to read: "The patent administrative department under the State Council and administrative departments for patent work under local people's governments shall, in collaboration with relevant departments at the same level, take measures to strengthen patent-related public services and promote the exploitation and application of patents."
XVI. An article is added as Article 50 to read: "Where a patentee voluntarily makes a statement in writing to the patent administrative department under the State Council that it is willing to grant authorization to any entity or individual to exploit its patent, while clarifying the methods and standards for the payment of royalties, the patent administrative department under the State Council shall make an announcement thereon and implement open authorization. Whoever makes a statement on open authorization in terms of a patent for any utility model or design shall provide a patent right evaluation report.
A patentee intending to withdraw its statement on open authorization shall propose a withdrawal in writing for further announcement by the patent administrative department under the State Council. The withdrawal of a statement on open authorization through announcement would have no prejudice to the validity of prior open authorization."
XVII. An article is added as Article 51 to read: "Any entity or individual intending to exploit a patent under open authorization may obtain the authorization for exploitation of the patent immediately after informing the patentee thereof in writing and paying the royalty as per the methods and standards for payment of royalties as announced.
During the implementation of open authorization, a patentee shall be correspondingly given a reduction in the annual patent fee payable.
A patentee implementing open authorization may grant a simple authorization after negotiation with the relevant licensee concerning the royalty rather than grant sole or exclusive authorization in terms of the pertinent patent."
XVIII. An article is added as Article 52 to read: "Any dispute over the implementation of open authorization arising between the parties concerned shall be settled by the parties concerned through negotiation; and in the case of no willingness to negotiate or failure to reach an agreement through negotiation, they may request the patent administrative department under the State Council to carry out mediation or file a lawsuit with the competent people's court."
XIX. Article 61 is amended to be Article 66 while Paragraph 2 thereof is amended to read: "Where a dispute over patent infringement involves a patent for a utility model or design, the competent people's court or administrative department for patent work may require the relevant patentee or interested party to issue a patent right evaluation report prepared by the patent administrative department under the State Council after retrieving, analyzing and evaluating the relevant utility model or design as evidence for tying or handling the dispute over patent infringement; and the patentee, pertinent interested party or alleged infringer may also issue a patent right evaluation report on its own initiative."
XX. Article 63 is amended to be Article 68 to read: “Whoever passes off another person's patent shall, in addition to legally assuming civil liability, be ordered by the department in charge of patent law enforcement to make corrections and be subjected to an announcement with its illegal income confiscated, and where necessary, be imposed a fine of not more than five times the illegal income; in the case of no illegal income or if the illegal income is not more than CNY50,000, it may be imposed a fine of not more than CNY250,000; and if a crime is constituted, criminal liability shall be investigated in accordance with the law."
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Order of the President of the People's Republic of China No.55
October 17, 2020
The Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China, which was adopted at the 22nd session of the Standing Committee of the 13th National People's Congress of the People's Republic of China on October 17, 2020, is hereby promulgated and shall come into effect as of June 1, 2021.
Xi Jinping, President of the People's Republic of China
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
(Adopted at the 22nd session of the Standing Committee of the 13th National People's Congress on October 17, 2020)
It was decided at the 22nd session of the Standing Committee of the 13th National People's Congress to make the following amendments to the Patent Law of the People's Republic of China:
I. Paragraph 4 of Article 2 is amended to read: “The term "design" refers to any new design of a product's overall or local shape, pattern or combination thereof, or combination of color and shape or pattern, which is fit for industrial application while having a sense of esthetics.”
II. Paragraph 1 of Article 6 is amended to read: “An invention-creation that is accomplished by a person in the course of executing any task for the entity to which such person belongs, or mainly through taking advantage of the entity's materials or technical resources is a service invention-creation. In terms of a service invention-creation, the right to apply for a patent therefor is vested in the entity. After the relevant application is approved, the entity shall be the patentee. The entity may legally dispose of the right to apply for a patent for its service invention-creation and the patent right, and promote the exploitation and application of the relevant invention-creation."
III. Article 14 is amended to be Article 49.
IV. Article 16 is amended to be Article 15 with a paragraph added as its Paragraph 2 to read: "The State encourages entities being granted patent rights to implement property right incentives and adopt such modes as equity, option and dividend to enable the proper sharing of innovation proceeds by inventors or designers."
V. An article is added as Article 20 to read: "Whoever applies for a patent and exercises the patent right shall follow the principle of good faith. No person may abuse the patent right to harm the public interest or the legitimate rights and interests of other persons.
"Whoever abuses the patent right to exclude or restrict competition thus constituting a monopolistic practice shall be punished in accordance with the Anti-monopoly Law of the People's Republic of China."
VI. The words “and its Patent Reexamination Board” set forth in Paragraph 1 of Article 21 is deleted.
Paragraph 2 thereof is amended to read: "The patent administrative department under the State Council shall strengthen the building of a patent information-related public service system, release patent information in a complete, accurate and timely manner, provide patent-related basic data, and publish patent gazettes on a regular basis, thus promoting the dissemination and utilization of patent information."
VII. An item is added to Article 24 as Item 1 to read: “1. in the case of any emergency or extraordinary circumstance occurring to the State, it is made public for the first time in the public interest".
VIII. Item 5, Paragraph 1 of Article 25 is amended to read: “5. nuclear transformation method and substances obtained by the method of nuclear transformation”.
IX. Paragraph 2 of Article 29 is amended to read: "Where an applicant files an application with the patent administrative department under the State Council for a patent on the same subject within 12 months from the date on which an application for a patent for any invention or utility model is filed for the first time in China or within six months from the date on which an application for a patent for a design is filed for the first time in China, it may enjoy the right of priority."
X. Article 30 is amended to read: "An applicant claiming the right of priority to a patent for any invention or utility model shall make a written statement at the time of application, and within sixteen months from the date on which an application is filed for the first time, submit a duplicate of the first-filed patent application documents.
"An applicant claiming the right of priority over any design patent shall make a written statement at the time of application and submit a duplicate of the first-filed patent application documents within three months.
Where an applicant fails to make a written statement or submit a duplicate of relevant patent application documents within the prescribed time limit, it shall be deemed as not claiming the right of priority."
XI. Article 41 is amended to read: "A patent applicant who is dissatisfied with the decision of the patent administrative department under the State Council to reject its application may request reexamination with the patent administrative department under the State Council within three months of receipt of the relevant notice. After reexamination, the patent administrative department under the State Council shall make a decision and notify the patent applicant thereof.
If the patent applicant is dissatisfied with the reexamination decision made by the patent administrative department under the State Council, it may file a lawsuit with the competent people's court within three months of receipt of the relevant notice."
XII. Article 42 is amended to read: "The duration of the patent right for an invention shall be 20 years, the duration of the patent right for a utility model shall be ten years, and that of the patent right for a design shall be 15 years, all commencing from the date of application.
Where the patent right for an invention is granted after four full years from the date of application for the invention patent and after three full years from the date of request for substantive examination, the patent administrative department under the State Council shall, at the request of the relevant patentee, make up the patent right duration in case of any unreasonable delay in granting the invention patent right, except for unreasonable delay caused by the applicant.
In order to make up the time taken up by review and approval for marketing of new drugs, the patent administrative department under the State Council shall, at the request of the relevant patentee, make up the patent right duration for invention patents pertaining to new drugs that obtain the marketing authorization in China. The make-up duration shall not exceed five years, and the total valid duration of a patent right shall not exceed 14 years after a new drug is approved for marketing."
XIII. The term “Patent Reexamination Board” set forth in Article 45 and Article 46 is amended to be “patent administrative department under the State Council”.
XIV. The title of Chapter VI is amended to read “Special Authorization for Exploitation of Patents”.
XV. An article is added as Article 48 to read: "The patent administrative department under the State Council and administrative departments for patent work under local people's governments shall, in collaboration with relevant departments at the same level, take measures to strengthen patent-related public services and promote the exploitation and application of patents."
XVI. An article is added as Article 50 to read: "Where a patentee voluntarily makes a statement in writing to the patent administrative department under the State Council that it is willing to grant authorization to any entity or individual to exploit its patent, while clarifying the methods and standards for the payment of royalties, the patent administrative department under the State Council shall make an announcement thereon and implement open authorization. Whoever makes a statement on open authorization in terms of a patent for any utility model or design shall provide a patent right evaluation report.
A patentee intending to withdraw its statement on open authorization shall propose a withdrawal in writing for further announcement by the patent administrative department under the State Council. The withdrawal of a statement on open authorization through announcement would have no prejudice to the validity of prior open authorization."
XVII. An article is added as Article 51 to read: "Any entity or individual intending to exploit a patent under open authorization may obtain the authorization for exploitation of the patent immediately after informing the patentee thereof in writing and paying the royalty as per the methods and standards for payment of royalties as announced.
During the implementation of open authorization, a patentee shall be correspondingly given a reduction in the annual patent fee payable.
A patentee implementing open authorization may grant a simple authorization after negotiation with the relevant licensee concerning the royalty rather than grant sole or exclusive authorization in terms of the pertinent patent."
XVIII. An article is added as Article 52 to read: "Any dispute over the implementation of open authorization arising between the parties concerned shall be settled by the parties concerned through negotiation; and in the case of no willingness to negotiate or failure to reach an agreement through negotiation, they may request the patent administrative department under the State Council to carry out mediation or file a lawsuit with the competent people's court."
XIX. Article 61 is amended to be Article 66 while Paragraph 2 thereof is amended to read: "Where a dispute over patent infringement involves a patent for a utility model or design, the competent people's court or administrative department for patent work may require the relevant patentee or interested party to issue a patent right evaluation report prepared by the patent administrative department under the State Council after retrieving, analyzing and evaluating the relevant utility model or design as evidence for tying or handling the dispute over patent infringement; and the patentee, pertinent interested party or alleged infringer may also issue a patent right evaluation report on its own initiative."
XX. Article 63 is amended to be Article 68 to read: “Whoever passes off another person's patent shall, in addition to legally assuming civil liability, be ordered by the department in charge of patent law enforcement to make corrections and be subjected to an announcement with its illegal income confiscated, and where necessary, be imposed a fine of not more than five times the illegal income; in the case of no illegal income or if the illegal income is not more than CNY50,000, it may be imposed a fine of not more than CNY250,000; and if a crime is constituted, criminal liability shall be investigated in accordance with the law."
XXI.
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