The Decision of the NPC Standing Committee on Amending the Patent Law of People's Republic of China (PRC) was adopted at the 22nd meeting of the 13th NPC Standing Committee in People's Republic of China (PRC) on June 1 day, 2020, and will come into force on June 1 day, 2026.
Legal basis:
Decision of NPC Standing Committee on Revision
1. Paragraph 4 of Article 2 is amended as: "Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern or combination of colors, shapes and patterns of products."
2. The first paragraph of Article 6 is amended as: "An invention-creation made by performing the tasks of the entity or mainly utilizing the material and technical conditions of the entity is a service invention-creation. The right to apply for a patent for a service invention-creation belongs to the unit. After the application is approved, the unit becomes the patentee. Units can dispose of their right to apply for patents and patent rights for service inventions and creations according to law, and promote the implementation and application of related inventions and creations. "
Three, fourteenth to forty-ninth.
4. Article 16 is renumbered as Article 15, and one paragraph is added as the second paragraph: "The state encourages units granted patent rights to implement property rights incentives in the form of equity, options and dividends, so that inventors or designers can share the innovation benefits reasonably."
One article is added as Article 20: "When applying for a patent and exercising a patent right, the principle of good faith shall be followed. Do not abuse the patent right to harm the public interest or the legitimate rights and interests of others.
Abuse of patent rights, exclusion or restriction of competition, which constitutes a monopolistic behavior, shall be dealt with in accordance with the Anti-Monopoly Law of the People's Republic of China.
Six, delete the "and the Patent Reexamination Board" in the first paragraph of article twenty-first.
The second paragraph is amended as: "the State Council Patent Administration Department shall strengthen the construction of public service system for patent information, publish patent information completely, accurately and timely, provide basic patent data, and publish patent bulletins regularly to promote the dissemination and utilization of patent information."
7. One item is added to Article 24 as the first item: "(1) When there is a state of emergency or extraordinary situation in the country, it is announced to the public for the first time for the purpose of public interest".
8. Item 5 of Paragraph 1 of Article 25 is amended as: "(5) Nuclear transformation methods and substances obtained by nuclear transformation methods".
9. Paragraph 2 of Article 29 is amended as: "An applicant who applies for a patent for an invention or utility model for the first time in China within twelve months, or for a design for the first time in China within six months, may enjoy priority."
10. Article 30 is amended as: "Where an applicant claims the priority of a patent for invention or utility model, he shall make a written statement at the time of application, and submit a copy of the first patent application document within 16 months from the date of filing the first application.
"Where an applicant claims the priority of a design patent, he shall make a written statement at the time of application and submit a copy of the first patent application document within three months.
Where the applicant fails to submit a written statement or a copy of the patent application documents within the time limit, it shall be deemed that the priority has not been claimed.
Xi。 Article 41 is amended as: "If the patent applicant refuses to accept the decision of the patent administration department in the State Council to reject the application, he may request a reexamination to the patent administration department in the State Council within three months from the date of receiving the notice. After the review, the patent administration department in the State Council shall make a decision and notify the patent applicant.
If the patent applicant refuses to accept the reexamination decision of the patent administrative department of the State Council, he may bring a suit in a people's court within three months from the date of receiving the notice.
Twelve. Article 42 is amended as: "The term of the invention patent right is 20 years, the term of the utility model patent right is 10 year, and the term of the design patent right is 15 year, all of which are counted from the date of application.
"Where a patent for invention is granted for four years from the date of filing and three years from the date of substantive examination request, the patent administration department in the State Council shall, at the request of the patentee, compensate for the unreasonable delay of the patent for invention in the process of authorization, except for the unreasonable delay caused by the applicant.
"In order to compensate for the time occupied by the examination and approval of the listing of new drugs, the patent administration department of the State Council shall, at the request of the patentee, compensate for the patent term of the invention patent related to new drugs that has obtained the listing license in China. The compensation period shall not exceed five years, and the total effective patent right period after the new drug is approved for listing shall not exceed fourteen years. "
Thirteen, forty-fifth, forty-sixth in the "Patent Reexamination Board" is amended as "the State Council patent administration department".
Fourteen The title of Chapter VI is changed to "Special License for Patent Exploitation".
15. One article is added as Article 48: "The patent administrative department of the State Council and the patent administrative department of the local people's government shall, jointly with relevant departments at the same level, take measures to strengthen the public service of patents and promote the implementation and application of patents."
16. One article is added as Article 50: "If the patentee voluntarily declares in writing to the patent administration department of the State Council that he is willing to license any unit or individual to exploit his patent, and specifies the payment method and standard of the license fee, the patent administration department of the State Council shall make an announcement and implement an open license. Where a patent for utility model or design applies for a public license statement, a patent evaluation report shall be provided.
"Where the patentee withdraws the declaration of open license, it shall be put forward in writing and announced by the patent administration department of the State Council. If the public license statement is withdrawn by announcement, it will not affect the effectiveness of the previously granted public license. "
17. One article is added as Article 51: "Any unit or individual willing to exploit a patent by public license shall notify the patentee in writing, and obtain a patent exploitation license after paying the license fee according to the published payment method and standard.
"During the implementation of the open license, the annual patent fee paid by the patentee shall be reduced accordingly.
The patentee who implements the open license may, after consultation with the licensee on the license fee, grant a general license, but may not grant an exclusive or exclusive license to the patent.
18. One article is added as Article 52: "Any dispute arising from the implementation of the open license shall be settled by the parties through consultation; If you are unwilling to negotiate or fail to negotiate, you may request the patent administration department of the State Council to mediate or bring a lawsuit to the people's court. "
19. Article 61 is renumbered as Article 66, and the second paragraph is amended as: "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 produce 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; The patentee, interested party or alleged infringer may also issue a patent evaluation report on his own initiative. "
20. Article 63 is renumbered as Article 68 and amended as: "Anyone who counterfeits a patent shall bear civil liability according to law, and the department in charge of patent law enforcement shall order him to make corrections and make a public announcement, confiscate his illegal income, and may concurrently impose a fine of less than five times his illegal income; If there is no illegal income or the illegal income is less than 50 thousand yuan, a fine of less than 250 thousand yuan may be imposed; If it constitutes a crime, criminal responsibility shall be investigated according to law. "
Twenty-one, Article 64 is changed to Article 69 and amended as: "The department in charge of patent law enforcement has the right to take the following measures according to the evidence obtained when investigating and dealing with suspected patent counterfeiting:
"(a) to ask the parties concerned and investigate the situation related to the suspected illegal act;
"(two) to conduct on-site inspection of the places where the parties are suspected of illegal acts;
"(3) consulting and copying contracts, invoices, account books and other relevant materials related to suspected illegal acts;
"(four) to inspect the products related to the suspected illegal acts;
"(5) The products proved to be counterfeit patents may be sealed up or detained.
"When handling patent infringement disputes, the administrative department for patent affairs may, at the request of the patentee or interested party, take the measures listed in Items (1), (2) and (4) of the preceding paragraph.
When the patent law enforcement department and the patent administrative department exercise their functions and powers as prescribed in the preceding two paragraphs according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct them.
22. One article is added as Article 70: "The patent administration department in the State Council may, at the request of the patentee or interested party, handle patent infringement disputes that have great influence throughout the country.
"The administrative department for patent affairs of the local people's government shall, at the request of the patentee or interested party, handle patent infringement disputes, and may merge cases of infringement of the same patent right within their respective administrative areas; Cases of cross-regional infringement of the same patent right may be requested to be handled by the patent administration department of the local people's government at a higher level. "
Twenty-three, Article 65 is changed into Article 71, which is amended as: "The amount of compensation for infringement of patent rights shall be determined according to the actual losses suffered by the obligee or the interests gained 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. For intentional infringement of the patent right, if the circumstances are serious, the amount of compensation can be determined in accordance with the above method.
"If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine to pay compensation of more than 30,000 yuan and less than 5 million yuan according to factors such as the type of patent right, the nature and circumstances of the infringement.
"The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
"In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly in the hands of the infringer; If the infringer fails to provide or provide false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided. "
Article 66 is renumbered as Article 72 and amended as: "Where the patentee or interested party has evidence to prove that others are committing or will commit acts that infringe the patent right and hinder the realization of their rights, 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 of property preservation, ordering the implementation of certain acts or prohibiting certain acts according to law before bringing a lawsuit."
25. Article 67 is renumbered as Article 73 and amended as: "In order to stop the infringement of patent rights, before the prosecution, the patentee or interested party may apply to the people's court for the preservation of evidence according to law under the circumstances that the evidence may be lost or difficult to obtain later."
Article 68 is renumbered as Article 74 and amended as: "The limitation of action for patent infringement is three years, counting from the date when the patentee or interested party knows or should know about the infringement and infringer.
"Before the patent right is granted, if the application for a patent for invention has been published and the appropriate royalties have not been paid for the use of the invention, the limitation period for the patentee to pay the royalties is three years, counting from the date when the patentee knows or should know that others use his invention. However, if the patentee knows or should know before the patent right is granted, it shall be counted from the date when the patent right is granted. "
27. One article is added as Article 76: "In the process of drug listing review and approval, if there is a dispute between the applicant for drug listing license and the relevant patentee or interested party over the patent right related to the drug applied for registration, the relevant parties may bring a lawsuit to the people's court to request a judgment on whether the drug-related technical scheme applied for registration belongs to the scope of drug patent protection of others. The drug supervision and administration department of the State Council may, according to the effective judgment of the people's court, make a decision on whether to suspend the approval of the listing of related drugs within the prescribed time limit.
"The applicant for drug marketing license and the relevant patentee or interested party may also request the patent administrative department of the State Council to make an administrative ruling on the patent dispute related to the drug applied for registration.
The drug supervision and administration department of the State Council shall, jointly with the patent administration department of the State Council, formulate the specific measures for the connection between the examination and approval of drug marketing license and the handling of patent disputes at the application stage of drug marketing license, which shall be implemented after being approved by the State Council.
Twenty-eight, delete seventy-second.
Twenty-nine, seventy-third to seventy-ninth, seventy-fourth to eightieth, and the "administrative punishment" is amended as "punishment".
This decision shall come into force on June 1 20265438.
According to this decision, the Patent Law of People's Republic of China (PRC) shall be revised accordingly, and the order of articles shall be adjusted accordingly, and it shall be re-promulgated.