Song Jianhua, Director of the Department of Treaty and Law of China National Intellectual Property Administration, introduced the basic situation of the revision of the patent law. China's patent system was established in 1984 and came into effect in 1985. At present, it has been completely revised three times. The patent system has been implemented for more than 30 years and has made remarkable achievements. As China strengthens the construction of a strong intellectual property country and deeply implements the national intellectual property strategy, there are still some problems in the process of obtaining achievements. For example, there are new contradictions and problems in the field of patent protection, which are mainly manifested in the protection and application of patents, as well as the construction of innovation subject ability and government service ability. In particular, the subject of innovation faces difficulties such as long protection period, difficulty in obtaining evidence, low compensation and poor effect, which affects the enthusiasm of enterprises for innovation and needs to be further standardized from the legal level.
In order to implement the new requirements of strengthening intellectual property protection put forward by the Central Committee and the State Council in recent years, combine the needs of the situation and the spirit of the documents of the CPC Central Committee and the State Council, and solve the difficulties and problems faced by innovative subjects, it is necessary to further improve this patent law. In 20 15, China National Intellectual Property Administration submitted a proposal for the fourth comprehensive revision of the patent law to the State Council, and now the State Council Legislative Affairs Office is also collecting opinions and reviewing the submitted draft. China National Intellectual Property Administration fully cooperated with the Legislative Affairs Office of the State Council to carry out relevant work.
Two. Administrative penalties for group infringement and repeated infringement
Zhao Meisheng, deputy director of the Patent Management Department, said that a certain patentee infringed at the same time for a period of time, which had a great influence on the patentee's innovation enthusiasm. Repeated infringement means that the patentee's patent right has been infringed once by the same subject in a certain period of time and in a certain area, and after being identified as infringement by judicial organs, it has been repeatedly infringed and discovered. These two kinds of torts not only infringe on the legitimate rights and interests of the obligee, but also seriously undermine the market economic order and harm the public interest. It is necessary to strengthen government supervision, impose certain administrative penalties on repeated infringement and group infringement, earnestly safeguard the operating order of the patent system, and give confidence to patentees and innovators.
Three, on the protection of Internet patents, the legal responsibility of Internet service providers.
Zhao Meisheng, deputy director of the Patent Management Department, said that with the development of e-commerce in China, there have been more and more infringements of e-commerce in recent years. Although Article 36 of Tort Liability Law stipulates the legal liability of Internet service providers in principle, including the corresponding liability for infringement of intellectual property rights, it is not specific and detailed in patent infringement. At present, the patent law has no clear legal provisions in this respect, and it needs to make corresponding specific provisions when it is amended. After receiving the "notice" from the right holder or interested party, the e-commerce platform will clearly bear the corresponding legal responsibilities if it does not take necessary measures. Clarify the rights and obligations of e-commerce platform, obligee and operator on the e-commerce platform, promote the faster and healthier development of e-commerce, and effectively curb the infringement on the network.
Four, about the patent administrative department of patent infringement dispute investigation and evidence collection means.
Zhao Meisheng, deputy director of the Patent Management Department, said that patent rights are intangible property rights, and it is very difficult to collect evidence of infringement, which is very concealed, and the relevant evidence of infringement is often in the hands of infringers. Tort is an illegal act, and government agencies should play the role of post-event supervision, actively collect evidence according to the request of the obligee, and ensure the principles of fairness, neutrality, objectivity and comprehensiveness when collecting evidence. At present, the regulations in this area are not perfect enough, and the means of investigation and evidence collection are lacking. It is hoped that the revision of the patent law can refine the means of investigation and evidence collection by government agencies, which is conducive to improving the intensity and fairness of patent protection and is also the necessity of legislative revision.
Verb (abbreviation of verb) Protection scope of local design and application documents
Lin, director of the design review department, said that protecting local designs is an important revision to strengthen the protection of designs in the draft. With the development of economy and society, design plays an important role in improving product market competitiveness and enterprise transformation and upgrading. Subversive design and brand-new design of a product are rare, and most of the design innovations are carried out on the basis of existing products. The protection of the whole by the current law is the principle of "overall observation and comprehensive judgment", that is, the design must be comprehensively compared to see if it can be patented. This situation weakens local protection, so this revision gives more important protection to the parts with local characteristics and strengthens the protection of designers' rights. This revision is very important.
The requirements and protection scope of the application documents will be further refined in the detailed rules for the implementation of the patent law and the patent examination guide in the future. For example, at the time of application, the whole product and local design can be distinguished by the combination of dotted line and solid line, and the application can be submitted by means of color block discrimination or brightness. In addition, in the scope of protection, we should consider which kind of local design belongs to in the overall product category. Furthermore, factors such as the proportion and location of local design should be considered, and the scope of protection should be considered comprehensively.
Six, about the design patent protection period from ten to fifteen years.
Lin, director of the design review department, said that on the one hand, compared with several major countries and regions with design patents in the world, the protection period of design in China is relatively shortest, and other countries have fifteen or twenty-five years; On the other hand, some high-level design products have a relatively long cycle; Other classic designs have this demand. They want to be protected for a long time and let the public know about his product image for a long time, which is very useful for the brand, the image and the continuation of his DNA design. Therefore, the protection period is adjusted according to the needs of the public in this regard. Our country is also actively considering joining The Hague Agreement, which is a very good channel to promote enterprises to apply abroad. The Hague agreement stipulates that the minimum protection period of design is 15 years, and the protection period has been adjusted according to the needs of the Hague agreement.
Seven, about the punitive damages system of patent infringement.
Song Jianhua, director of the Treaty Law Office of China National Intellectual Property Administration, said that at present, the cost of patent infringement in China is very low, while the cost of patentees' rights protection is very high, which leads to some enterprises' patentees winning lawsuits and losing the market in the process of rights protection. As the patent right of intangible property, it needs a lot of cost in the early investment and later maintenance process. The amendment proposes punitive damages. For intentional infringement of patent rights, when making compensation, it is not only required to pay compensation and compensation to the obligee, but also to give warning, punishment and punitive compensation to the infringement. For the amount of compensation, it is suggested that the court can impose a penalty of 1-3 times on this intentional infringement. This will increase the punishment, and it is also a great supplement to the right holder's cost of safeguarding rights. Punitive damages system has been embodied in the Trademark Law, and other intellectual property legislation is also under consideration.
Eight, about the patent evaluation report
Lin, director of the design review department, said that in the current law, only the patentee and interested parties can make requests for the evaluation report. At present, China National Intellectual Property Administration will release an evaluation report. This revision adds the theme of the patent evaluation report. In addition to the patentee, the accused infringer may also take the initiative to apply for an evaluation report. In tort litigation, if the applicant feels that the evaluation report is unfavorable to him, he may not submit the evaluation report on his own initiative, which will have certain influence on the court's timely or accurate ruling; If the accused infringer voluntarily requests the evaluation report, it will be very beneficial for the court to make an accurate judgment in time.
The function of patent evaluation report will be used for litigation infringement. In addition, this revision adds the ex officio license system, and patent evaluation report must be provided when applying for ex officio license. The patent evaluation report is not limited to the design, and both the utility model and the design as the preliminary examination system can put forward such requirements.
Nine, about the patent licensing system.
Zhao Meisheng, deputy director of the Patent Management Department, said that the compulsory patent licensing system is an open patent licensing system. After the patent right is authorized, the obligee may ask China National Intellectual Property Administration to put the patent right on the bulletin board and make it public to the whole society through the Internet or by means of paper and electricity. Anyone in the whole society is eligible to obtain a license and pay the license fee to the obligee within the period of patent opening license.
Most countries, including developed countries, such as Britain, France and Germany, have compulsory licensing system, and the proportion of compulsory licensing in all patent licenses in Britain has reached as high as 40% in recent years; At present, in addition to China, Brazil, India, South Africa and Russia all have compulsory licensing systems; Other developing countries, such as Malaysia and Thailand, also have compulsory licensing systems. Of course, the licensing system is a universal, open and inclusive way to promote patent implementation. If China can introduce the compulsory licensing system in this revision, it will solve the problem of information asymmetry, reduce transaction costs, improve transaction efficiency, speed up the implementation and application of domestic patents, and play a very important role in the implementation of the strategy of strengthening the country with intellectual property rights and the effective operation of the patent system.
Song Jianhua, director of the China National Intellectual Property Administration Treaty Law Office, said that since the patent system was implemented for more than 30 years, the number of patent applications and authorizations in China has increased rapidly in recent years, and the enthusiasm and ability of enterprises to innovate are in the process of rapid explosion. Many patented technologies, especially valuable patented technologies applied by some universities and research institutes, are dormant due to the asymmetry of patent information dissemination. In order to facilitate the patentee to exchange his own technical information and the demander to find the technology quickly, a platform is established from the perspective of government services through legal means, which increases the convenience of both parties to technology transfer.
X. Implied licensing system for standard essential patents
Song Jianhua, director of the Treaty Law Department of China National Intellectual Property Administration, said that the issue of standards and patents is actually the connection point between the two legal systems. On the one hand, it is necessary to fully protect the contribution made by the patentee in technological innovation, but at the same time, it is also necessary to properly solve the interest relationship between the patentee and the patentee as the standard implementer in manufacturing products, and the obligations that the patentee should perform in this regard.
In practice, some standard schemes cover some patented technologies, and patentees are involved in the process of formulating standards, requiring patentees who participate in the standard formulation to disclose their patent information, make fair, reasonable and non-discriminatory commitments, and issue licenses. However, in practice, there are some individual phenomena. The patentee did not fully disclose his own patent information when he participated in the formulation of standards, which may lead to the infringement of patent rights by the implementers of standards in the later stage, which requires the patentee to undertake the obligation of disclosure and notification.
This revision of the patent law proposes that if the patentee fails to disclose the patent information of design honestly in the process of standard setting, his behavior is flawed, which leads to the above consequences due to his dishonesty. In this regard, on the one hand, the patentee should exercise his rights, and at the same time, he should fulfill his obligation of publicity. If there is no honest disclosure, the standard implementer is regarded as an implied license to exploit the patent, but the patent is not implemented free of charge, and other enterprises and manufacturers still have to pay reasonable patent fees to the patentee.
At present, China only requires the patentee to disclose the information in the process of standard setting in the departmental regulations or normative documents of standardization law, but if it is not made public, its legal responsibility is not clearly defined. The connection between standardization law and patent law is that it is necessary for the patentee to disclose information through standards, and the patent law makes corresponding provisions on what legal consequences the patentee should bear if he does not disclose information.
Song Jianhua, director of the Department of Law and Law of China National Intellectual Property Administration, said that the patentee should abide by the principle of good faith when exercising his rights and participating in the formulation of standards. The laws and regulations formulated by national standardization are properly connected with the patent law in system, and the relevant provisions need to be further improved.
XI。 Administrative examination and approval of the establishment of patent agencies and the qualification of patent agents.
Song Jianhua, director of the Department of Law and Law of China National Intellectual Property Administration, said that patent agents are an important part of the implementation of the patent system. Patent agents have played a very important professional role in patent application, enterprise innovation, patent literature, technology and information utilization, and patent protection, transfer, implementation and application after patent authorization. Patent agents provide professional and highly technical legal services, and their qualifications involve the legal protection of important citizens' property rights and interests, so they need to obtain corresponding administrative licenses to ensure that the rights and interests of innovative subjects are effectively protected.
This time, the patent law has revised some important provisions of the agency system, such as the need for administrative license to engage in patent agency business. Acts without administrative permission should be punished accordingly. In practice, some people or institutions solicit patent agency business by deceiving the public without obtaining the administrative license of patent agency, which seriously affects the whole market order and directly hurts the rights and interests of innovation subjects.