Decision of the Standing Committee of the National People's Congress on the Revision of the Patent Law of the People's Republic of China

Decision of the Standing Committee of the National People's Congress on the Revision of the Patent Law of the People's Republic of China

December 27, 2008

(Adopted at the 6th session of the Standing Committee of the 11th National People's Congress on December 27, 2008)

It is decided at the 6th session of the Standing Committee of the 11th National People's Congress that the Patent Law of the People's Republic of China should be revised as follows:

I. Article 1 should be revised as "The Patent Law of the People's Republic of China (hereinafter referred to as the "Law") is enacted in order to protect the lawful rights and interests of patentees, encourage invention and creative activities, promote the application of inventions and creations, enhance innovation capability and facilitate the advancement of science and technology and the economic and social development."

II. Article 2 Three paragraphs should be added to Article 2 to serve as the second, third and fourth Paragraphs which read "The term "invention" refers to any new technical solution pertaining to any or all of a product or process or the improvement thereof.
The term "utility model" refers to any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
The term "design" refers to any new design pertaining to the shape, the pattern, or their combination, or the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application."

III. Article 5 should be revised to read "No patent right may be granted for any invention-creation that violates any law or public morality or harm public interest.
No patent right may be granted for any invention-creation that is accomplished by relying on genetic resources that are acquired or utilized in violation of the provisions of laws and administrative regulations."

IV. A new paragraph should be added to Article 9 to serve as Paragraph 1 which reads "Only one patent can be granted for the same invention-creation. However, in the event the same applicant applies for both a patent for utility model and patent for invention with regard to the same invention-creation on the same date, if the patent for utility model acquired earlier is not terminated yet and the applicant declares to waive the patent for utility model, the patent for invention may be granted."

V. Paragraph 2 of Article 10 should be revised to read "Any Chinese entity or individual that seeks to assign the right to apply for a patent or any patent right to a foreigner, foreign enterprise or any other foreign organization shall go through appropriate formalities in accordance with relevant laws or administrative regulations."

VI. Paragraph 2 of Article 11 should be revised to read "After a patent right for a design is granted, no entity or individual may, without the permission of the patentee, exploit the patent, namely, for production or business purposes, to manufacture, offer for sale, sell, or import any product containing the patented design."

VII. Article 12 should be revised to read "Any entity or individual that seeks to exploit a patent owned by another party shall enter into a license contract for exploitation of the patent with the relevant patentee and pay royalties pertaining to the patent to the patentee. The licensee does not have the right to allow any entity or individual not specified in the contract to exploit such patent."

VIII. Paragraph 2 of Article 14 should be deleted.

IX. A new article should be added to serve as Article 15 which reads Where the co-owners of the right to apply for a patent or a patent right have concluded an agreement with respect to the exercise of the right, such agreement shall apply. In the absence of such agreement, any co-owner may independently exploit the patent, or permit another party to exploit the said patent by means of a non-exclusive license. In the event another party is permitted to exploit the patent, any royalties received shall be distributed among the co-owners.
Except under the circumstances specified in the preceding paragraph, the right to apply for a patent or a patent right that is jointly owned shall be exercised with the consent of all co-owners."

X. Article 15 and Article 17 should be combined to serve as Article 17 which reads "An inventor or designer has the right to be named as such in the patent documents.
A patentee has the right to label a patented product, or the package of the said product, with a patent mark."

XI.
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