1. Article 1 is amended as: "This Law is formulated for the purpose of protecting the legitimate rights and interests of patentees, encouraging inventions and creations, promoting the application of inventions and creations, improving innovation ability, and promoting scientific and technological progress and economic and social development."
2. Three paragraphs are added to Article 2 as the second, third and fourth paragraphs: "Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application in the shape, pattern or combination of products and the combination of colors, shapes and patterns.
Three. Article 5 is amended as: "No patent right shall be granted for inventions and creations that violate laws, social morality or harm public interests." .
"No patent right shall be granted to inventions and creations obtained or utilized in violation of laws and administrative regulations, or completed by relying on genetic resources."
4. One paragraph is added to Article 9 as the first paragraph: "Only one patent right can be granted to the same invention-creation. However, if the same applicant applies for a patent for utility model and an invention patent at the same time for the same invention and creation on the same day, and the previously obtained patent right for utility model has not been terminated, the applicant may grant the patent right for invention. "
5. Paragraph 2 of Article 10 is amended as: "Where a unit or individual in China transfers the patent application right or patent right to a foreigner, foreign enterprise or other foreign organization, it shall be handled in accordance with the provisions of relevant laws and administrative regulations."
6. Paragraph 2 of Article 11 is amended as: "After a design patent is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell or import its patented product for production and business purposes."
7. Article 12 is amended as: "Any unit or individual that exploits another person's patent shall conclude an exploitation license contract with the patentee and pay the patentee the exploitation fee. The licensee has no right to allow any unit or individual other than those stipulated in the contract to exploit the patent. "
Eight, delete the second paragraph of article fourteenth.
One article is added as Article 15: "Where there is an agreement on the right to apply for a patent or the exercise of the patent right, such agreement shall prevail. If there is no agreement, * * * someone can exploit the patent alone or license others to exploit it by ordinary license; Where another person is licensed to exploit the patent, the royalties collected shall be distributed among the owners.
"Except for the circumstances specified in the preceding paragraph, the exercise of all patent application rights or patent rights of * * * shall be subject to the consent of the owner of * * *."
10. Article 15 and Article 17 are merged into Article 17: "An inventor or designer has the right to state in the patent document that he is an inventor or designer.
"The patentee has the right to indicate the patent mark on his patented product or the packaging of the product."
Xi。 Paragraph 1 of Article 19 is amended as: "Foreigners, foreign enterprises or other foreign organizations that have no habitual residence or business office in China shall entrust a legally established patent agency to apply for patents and handle other patent affairs in China."
The second paragraph is amended as: "Where a China entity or individual applies for a patent or handles other patent affairs in China, it may entrust a legally established patent agency to handle it."
12. Paragraph 1 of Article 20 is amended as: "Any unit or individual that applies for a patent for an invention or utility model completed in China to a foreign country shall file a confidentiality review with the patent administration department of the State Council in advance. The procedures and deadlines for confidentiality review shall be implemented in accordance with the regulations of the State Council. "
One paragraph is added as the fourth paragraph: "No patent right shall be granted to inventions or utility models that apply for a patent in China in violation of the provisions of the first paragraph of this Article."
Thirteen. One paragraph is added to Article 21 as the second paragraph: "The patent administration department of the State Council shall publish patent information completely, accurately and timely, and publish patent bulletins regularly."
Fourteen, the second paragraph of Article 22 is amended as: "Novelty means that the invention or utility model does not belong to the existing technology; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same invention or utility model, and it is recorded in the patent application documents published or announced after the filing date. "
The third paragraph is amended as: "Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress."
One paragraph is added as the fifth paragraph: "The existing technology mentioned in this Law refers to the technology known to the public at home and abroad before the date of application."
Fifteen. Article 23 is amended as: "The design for which the patent right is granted does not belong to the existing design; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date.
"Compared with the existing design or the combination of existing design features, the patented design should have obvious differences.
"A design that has been granted a patent right shall not conflict with the legal rights that others have obtained before the date of application.
"Existing designs mentioned in this Law refer to designs known to the public at home and abroad before the date of application."
Sixteen, one item is added as item (6) in the first paragraph of Article 25: "The design of the pattern, color or the combination of the two."
17. Paragraph 2 of Article 26 is amended as: "The request shall specify the name of the invention or utility model, the name of the inventor, the name and address of the applicant, etc."
Paragraph 4 is amended as: "The claims shall clearly and concisely define the scope of patent protection based on the specification."
One paragraph is added as the fifth paragraph: "For an invention-creation completed by relying on genetic resources, the applicant shall specify the direct source and original source of genetic resources in the patent application documents; If the applicant cannot explain the original source, it shall explain the reasons. "
Article 27 is amended as: "To apply for a patent for design, a request, a picture or photograph of the design, a brief description of the design and other documents shall be submitted.
"The relevant pictures or photographs submitted by the applicant shall clearly indicate the design of the product that requires patent protection."
Paragraph 2 of Article 31 is amended as: "An application for a patent for design shall be limited to one design. Two or more similar designs of the same product, or two or more designs of products used in the same category and sold or used in sets, may be filed as one application. "
20. Paragraph 2 of Article 47 is amended as: "The decision to declare the patent right invalid shall not have retrospective effect on the patent infringement judgment and conciliation statement made and executed by the people's court before the patent right is declared invalid, the executed or executed patent infringement dispute settlement decision, and the executed patent licensing contract and patent transfer contract. However, if the patentee's malice causes losses to others, it shall be compensated. "
The third paragraph is amended as: "If the patent infringement compensation, patent exploitation fee and patent transfer fee are not returned in accordance with the provisions of the preceding paragraph, which obviously violates the principle of fairness, they shall be returned in whole or in part."
Twenty-one, Article 48 is amended as: "In any of the following circumstances, the administrative department for patent in the State Council may grant a compulsory license to exploit a patent for invention or utility model upon the application of a unit or individual that has the conditions for implementation:
"(1) It has been three years since the patent right was granted and four years since the patent application was filed, and the patentee has not implemented or not fully implemented his patent;
(2) The patentee's act of exercising the patent right is recognized as a monopolistic act according to law, so as to eliminate or reduce the adverse impact of the act on competition.
22. One article is added as Article 50: "For the purpose of public health, the patent administration department of the State Council may grant compulsory licenses to countries or regions that meet the requirements of relevant international treaties to which People's Republic of China (PRC) is a party."
23. One article is added as Article 52: "The invention-creation involved in compulsory license is of semiconductor technology, subject to the purpose of public interest and the circumstances specified in Item (2) of Article 48 of this Law."
24. One article is added as Article 53: "In addition to granting compulsory licenses in accordance with the provisions of the second paragraph of Article 48 and Article 50 of this Law, the implementation of compulsory licenses shall focus on supplying domestic markets."
25. Article 51 is renumbered as Article 54 and amended as: "A unit or individual applying for compulsory license in accordance with the provisions of Article 48, paragraph 1 and Article 51 of this Law shall provide evidence to prove that it requested the patentee to license it to exploit the patent under reasonable conditions, but failed to obtain the license within a reasonable time."
Article 54 is renumbered as Article 57 and amended as: "A unit or individual that has obtained a compulsory license for exploitation shall pay a reasonable royalty to the patentee, or handle it in accordance with the provisions of relevant international treaties to which People's Republic of China (PRC) is a party. If the user fee is paid, the amount shall be negotiated by both parties; If the two parties cannot reach an agreement, it shall be decided by the patent administration department of the State Council. "
Article 56 is renumbered as Article 59 and amended as: "The scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims, and the description and drawings may be used to explain the contents of the claims.
"The protection scope of the design patent right shall be subject to the design of the product shown in the picture or photo, and the design of the product shown in the picture or photo may be explained by a brief description."
Twenty-eight, the second paragraph of Article 57 is changed into Article 61 and amended as: "Where a patent infringement dispute involves a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method.
Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to issue a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute.
29. One article is added as Article 62: "In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement."
30. Article 58 and Article 59 are merged into Article 63, which is amended as: "Anyone who counterfeits a patent shall bear civil liability according to law, and the administrative department for patent affairs shall order him to make corrections and make a public announcement, confiscate his illegal income, and may concurrently impose a fine of less than four times his illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If it constitutes a crime, criminal responsibility shall be investigated according to law. "
3 1. One article is added as Article 64: "When the administrative department for patent affairs investigates and handles the suspected patent counterfeiting according to the obtained evidence, it may require the relevant parties to investigate the situation related to the suspected illegal act; On-site inspection of the places where the parties are suspected of illegal acts; Consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; Inspect products related to suspected illegal acts, and seal up or detain products that are proved to be counterfeit patents.
When the administrative department for patent affairs exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct it.
Article 60 is renumbered as Article 65 and amended as: "The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
"If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the license fee for patent exploitation, the people's court may determine compensation of not less than 10,000 yuan but not more than 1 million yuan according to factors such as the type of patent right, the nature and circumstances of the infringement."
Article 61 is renumbered as Article 66 and amended as: "If the patentee or interested party has evidence to prove that others are committing or will commit patent infringement, and their legitimate rights and interests will be irretrievably damaged if they are not stopped in time, they may apply to the people's court for measures to order them to stop the relevant acts before bringing a lawsuit.
"When applying, the applicant shall provide a guarantee; If no guarantee is provided, the application shall be rejected.
"The people's court shall make a ruling within 48 hours from the date of accepting the application; If there are special circumstances that need to be extended, it can be extended for forty-eight hours. If an order is made to stop the relevant acts, it shall be executed immediately. If a party refuses to accept the ruling, it may apply for reconsideration once; The execution of the award shall not be suspended during the reconsideration period.
"If the applicant fails to bring a lawsuit within 15 days from the date when the people's court takes the measures ordered to stop the relevant acts, the people's court shall lift the measures.
If the application is wrong, the applicant shall compensate the respondent for the losses suffered by stopping the relevant acts.
34. One article is added as Article 67: "In order to stop patent infringement, the patentee or interested party may apply to the people's court for evidence preservation under the circumstances that the evidence may be lost or difficult to obtain later.
"The people's court may take preservation measures and order the applicant to provide a guarantee; If the applicant fails to provide a guarantee, the application shall be rejected.
"The people's court shall make a ruling within 48 hours from the date of accepting the application; If it is ordered to take protective measures, it shall be executed immediately.
If the applicant does not bring a suit within 15 days from the date when the people's court takes protective measures, the people's court shall lift the protective measures.
35. Paragraph 1 of Article 63 is changed to Article 69, and item (1) is amended as: "Where the patentee or a unit or individual licensed by him sells a patented product or a product directly obtained according to the patented method, and then uses, promises to sell, sells or imports the product;"
One item is added as Item (5): "Those who manufacture, use or import patented drugs or patented medical devices for the purpose of providing information required for administrative examination and approval, and those who manufacture or import patented drugs or patented medical devices exclusively for them."
36. Paragraph 2 of Article 63 is changed to Article 70 and amended as: "Anyone who uses, promises to sell or sells an infringing patented product for production and business purposes without knowing that it was manufactured or sold without the permission of the patentee shall not be liable for compensation."