According to the online interview of China National Intellectual Property Administration website 65438+1October 65438+June, China National Intellectual Property Administration's third revision of the patent law mainly follows three principles. First, safeguard the organic unity of the patentee and the public interests. The revision of the patent law should not only fully safeguard the legitimate rights and interests of the patentee, but also make the patent right more timely and effectively protected; We should also earnestly safeguard the legitimate rights and interests of the public, better regulate the exercise of patent rights and prevent the abuse of patent rights. Second, the organic unity of adapting to the international development trend and basing on China's national conditions. The revision of patent law should not only consider the development trend of international patent rules, but also draw lessons from the successful experience of relevant countries reasonably; More importantly, we should fully grasp the specific national conditions of China and make the revised patent law adapt to the development stage and practical needs of China. Third, the organic unity of maintaining legal stability and improving legal adaptability. The draft for review maintains the basic characteristics of China's existing patent system and the overall structure of the current patent law, and does not propose amendments to the terms that are slightly outdated or inaccurate but do not affect the actual understanding and implementation; Only the clauses that are difficult to solve practical problems or will lead to inconsistency are proposed for revision.
What amendment did China National Intellectual Property Administration propose?
Song Jianhua, deputy director of the Department of Treaty and Law of China National Intellectual Property Administration, revealed that the relevant amendments should be considered from seven aspects: First, starting from the legislative purpose of the Patent Law. At present, building an innovative country is one of China's current strategic goals. In order to achieve this goal, it is necessary to fully reflect this demand in our legislation. Therefore, in Article 1 of the Patent Law, appropriate amendments have been made, and the purpose of promoting economic and social development and adapting to the needs of building an innovative country has been written into Article 1 of the Patent Law. Second, measures to deepen the reform of administrative examination and approval and build a service-oriented government, including canceling the designation of foreign-related agencies and increasing the provisions of the State Council patent administrative departments and local patent administrative departments on the responsibility of patent information dissemination. Thirdly, the patent application right, its ownership and management are considered. Firstly, it involves the ownership of state-funded scientific research projects and the definition of rights and obligations between patentees; Secondly, improve the examination and approval procedures for domestic inventions to apply for patents abroad. Fourth, the criteria for granting patent rights. This includes adopting the standard of absolute novelty, that is, canceling the geographical restrictions on existing technologies and existing designs and increasing the requirements for the protection and disclosure of genetic resources. Fifth, further improve the design system. It involves further limiting the scope of authorization of design, improving the substantive conditions for granting the patent right of design, jointly applying for related designs, and establishing a search report system for design. Sixth, further expand patent protection, improve patent administrative law enforcement, and further improve the calculation methods of infringement compensation and statutory compensation, and increase pre-litigation evidence preservation measures. Seventh, some considerations are mainly to safeguard the public's rights and interests and stop the abuse of intellectual property rights, including further improving the compulsory licensing system, adding supplementary provisions on the defense of existing technologies, and stopping the prescription of malicious litigation.
The difference between the third revised draft of patent law and the draft for soliciting opinions
In the process of preparing for the third revision of the Patent Law, the Department of Articles and Law of China National Intellectual Property Administration has done a lot of work. In August, 2006, a 70,000-word draft for comments was published to the public on the website of China National Intellectual Property Administration. In less than 20 days, 8,000 people put forward more than 600 amendments. Yin Xintian, Director of the Department of Treaty and Law of China National Intellectual Property Administration, said that compared with the draft solicited opinions from the public in August, we have made adjustments in many aspects. We have absorbed and adopted various opinions at home and abroad, conducted in-depth analysis and research, and put forward more perfect measures, which fully embodies the importance of listening to public opinions and will play a very important role in perfecting the law. For example, in the draft for comments, suggestions for improving Article 6 of the Patent Law are put forward to further mobilize the enthusiasm of inventors. In the process of soliciting opinions, after listening to opinions from all sides, we thought that this issue would not be mentioned for the time being until it was fully clarified, so we cancelled the suggestions put forward in the draft for soliciting opinions. For another example, in the exposure draft, many people want to add the principle of equivalence to the determination of patent infringement. In the process of soliciting opinions, according to some opinions of everyone, this principle is rare in patent laws all over the world. Considering the adaptability to China's development stage and various factors, there is no suggestion to further modify this aspect in the draft. The third example is about the limitation of action and stopping the abuse of patent rights. We have extensively listened to opinions from all sides, learned from foreign advanced experience, and made substantial adjustments to the draft for comments.
In order to facilitate the applicant and the patentee, corresponding measures have been taken.
In an online interview, a reporter from China Intellectual Property News asked Song Jianhua, deputy director, whether the third revision of the Patent Law would consider taking measures to increase the convenience of applicants and patentees. On this issue, Deputy Director Song Jianhua said that we took corresponding measures in the third revision of the Patent Law. Some improvements have also been made to facilitate applicants and the public to obtain relevant information. There are two main considerations in this regard: first, the designation of foreign-related institutions.
Secondly, the responsibility of government departments in patent information dissemination is determined. First, regarding the designation of foreign-related agencies, China's current patent law stipulates that both China applicants applying for patents abroad and foreign applicants applying for patents at home must be represented by designated foreign-related agencies. This is the time when the 1984 patent law was passed. Considering that China's patent system was just established at that time, China's agency industry was in the initial stage of establishment, its ability needed to be further improved, and the number of institutions was limited. In order to facilitate domestic and foreign applicants to apply for patents in China or foreign countries, we have made corresponding regulations, requiring applicants or patentees to entrust foreign-related agencies designated by us to handle entrusted agency matters. With the development of China's patent system and patent industry, China's agency industry is becoming more and more mature, and more and more agencies have the ability to handle foreign-related patent affairs. In order to create a good environment for fair competition, promote patent agencies to enhance their business capabilities and better serve patent applicants, the measures taken this time have cancelled the provisions on foreign-related agency. In other words, a foreign applicant applying for a patent in China can entrust any agency recognized by China National Intellectual Property Administration, not just the designated foreign-related agency.
On the other hand, in order to facilitate domestic applicants to apply for patents abroad. Now, with the development of economy and science and technology in China, enterprises are increasingly going to the international market. In the process of entering the international market, in order to enhance the competitiveness in the international market, it is inevitable to apply for patents abroad. To apply for a patent abroad, a foreign-related agency must be entrusted according to the current regulations. In practice, it is necessary to entrust a local agency, which makes domestic applicants bear the burden of double agency when applying abroad, and it is also not conducive to domestic applicants applying for patents abroad. However, it is also beneficial to entrust an agency with certain professional ability to handle foreign applications, because it is safer to entrust a domestic agency when some small enterprises do not understand the rules, which requires domestic applicants to decide for themselves. When you have the ability to apply for a patent abroad, it should be decided by the applicant. This revision is a very important move.
The second aspect is to increase the responsibility of patent management departments to disseminate patent information. As we all know, an important function of the patent system is to disseminate patent information. Through the dissemination of patent information, we can improve the starting point of invention and innovation, especially reduce the repeated R&D activities of scientific research institutions and enterprises, save social resources, and at the same time make enterprises avoid unintentional infringement of others' patent rights in market competition as much as possible. Although there are some relevant provisions on the publication and announcement of patent application documents in the current law, the dissemination of patent information is not positioned from the perspective of government functions. With the improvement of China's market economic system and the gradual strengthening of enterprises and institutions as the main players of market competition, their demand for patent information is also increasing. In this case, our government departments are required to serve enterprises in this respect and provide practical, timely and convenient patent information for enterprises.
At present, the current law in China is not very clear, so there are some problems in information dissemination, which need to be stipulated in the law. We draw lessons from relevant foreign laws and put forward some suggestions in this draft, that is, the patent administrative department of the State Council is responsible for issuing patent announcements and transmitting patent information in a timely manner. For the local patent administrative departments, from the perspective of their responsibilities, they also put forward the requirements of promoting the dissemination of patent information.
Patent protection has been further improved.
Wu, inspector of the Law Department, said that strengthening patent protection is the main content of this revision of the patent law. In the amendment proposal put forward by China National Intellectual Property Administration this time, the protection of patent right mainly involves three aspects: First, strengthen the right of patent right of design. In 2000, there were no additional regulations on design. As long as the product is sold, you can ask to stop the infringement, which cannot be stopped in exhibitions and advertisements. In order to protect the legitimate rights and interests of the right holders of designs, we suggest that no one should promise to sell products with design patents without permission. Second, further strengthen protection through judicial channels. Add provisions on pre-litigation evidence preservation and statutory compensation, and so on. Third, improve administrative law enforcement. In this regard, our suggestions in the draft patent law include: 1. It is suggested that intentional infringers should not only bear civil liability, but also be punished. 2. Provisions on means of investigation and evidence collection.
Ownership of patent rights of state-invested scientific research projects
Song Jianhua, Deputy Director of the Legal Department, pointed out that Article 14 of the current Patent Law reflects the requirements for the promotion, application and implementation of inventions and creations of state-owned enterprises. Regarding the attribution of the achievements of scientific research projects invested by the state, although Articles 6 and 8 of China's current patent law have corresponding provisions on the attribution of the rights of inventions and creations and the attribution of inventions and creations completed through cooperation or entrustment, the provisions are relatively clear. However, from the legal certainty, it is not clear whether the patent right in the scientific research project invested by the state belongs to the scientific research undertaking unit or to the state in general. In practice, it is often emphasized that the country belongs to it. Therefore, to a certain extent, it affects the enthusiasm and initiative of encouraging scientific research units to innovate, especially to encourage scientific research units to commercialize and industrialize their inventions. In order to solve this problem, we put forward corresponding suggestions in the third revised proposal. Of course, this proposal also refers to the relevant regulations issued by relevant departments in the State Council. On this basis, we combine the existing laws with the patent rights of scientific research projects invested by the state, that is to say, except those involving national security and major interests, they all belong to scientific research units. After obtaining the patent right, it can go through certain examination and approval procedures, that is to say, after the patent right is approved, the relevant departments and regional departments in the State Council will promote the application within the approved scope after going through the examination and approval procedures. The application of this regulation not only solves the patent ownership problem of the applicant for the invention-creation of the national scientific research project, but also plays a normative role in the promotion, application and implementation of the invention-creation after obtaining the patent right.
Introducing the standard of absolute novelty for the first time
Yin Xintian, Director of the Department of Treaty Law of China National Intellectual Property Administration, pointed out that China's current patent laws and regulations adopt mixed standards for novelty. Judging from the current development, there are some disadvantages: first, it is not conducive to invention and creation. Second, if a product or method has been publicly used or sold abroad, it can be used by the public in other countries, but it has become a patent right in China, which is unfair to the public in China. Mainly from these two angles, we think that the current provisions on novelty standards should be changed. Judging from the current international trend, it is also an obvious trend to adopt the absolute novelty standard in publications, public use and public sales. Judging from the domestic actual needs and the trend of coordinated development of intellectual property rules in various countries, it is necessary to adjust the novelty of patent law through this revision to adapt to the tide of China's integration into economic globalization.
The protection and disclosure requirements of genetic resources are added to the patent law.
At the end of 2006, a cross-regional seminar on traditional knowledge, traditional cultural expressions and genetic resources of the World Intellectual Property Organization was held in Zhengzhou, attended by Song Jianhua, Deputy Director of the Department of Treaty and Law of China National Intellectual Property Administration. She knows heritage resources and traditional knowledge very well.
She pointed out that the intellectual property protection of genetic resources and traditional knowledge is indeed a hot issue at home and abroad, including the World Trade Organization, the World Intellectual Property Organization and the United Nations Grain and Oil Organization, which discuss the protection of heritage resources from different angles and from their respective management responsibilities. The international discussion on this issue provides some ideas and references for our domestic legislation.
From the point of view of the coordination and matching of the existing intellectual property system, how to embody the protection of traditional genetic resources in the patent law has been our concern from the beginning. From the research of related topics in 2005, we also put forward legislative suggestions as a special topic. After careful consideration and careful analysis, we are prepared to make corresponding provisions on genetic resources in this revised opinion draft. First of all, consider genetic resources, which are very basic resources in the field of biotechnology and the basic material resources for biotechnology inventions. For biotechnological inventions involving genetic resources, how to protect genetic resources should be considered when applying for patents. At present, in this regard, the International Convention on Biological Diversity has made principled provisions on national sovereignty, benefit sharing and access to genetic resources. How to ensure the implementation of the three principles of biodiversity in national legislation is also a key issue that we should consider as patent law.
This revision involves two aspects: First, the implementation of the three principles of the Convention on Biological Diversity. China is a member of the Convention on Biological Diversity, which is rich in biological and genetic resources. Protecting genetic resources is very important to the interests of our country. The Convention on Biological Diversity needs its own domestic laws. Of course, from the perspective of patent system, we should support, coordinate and support the implementation of domestic legislation. First, it is necessary to limit the violation of the Convention on Biological Diversity or the acquisition of genetic resources through improper behavior. The application for a patent for an invention-creation based on the acquisition of heritage resources by illegal means should be stopped. In other words, the inventions made by such people are not patented. Second, in order to ensure the implementation of the above principles, we also require patent applicants to file patent applications in the corresponding regulations, especially that their inventions and creations depend on genetic resources, and the sources of the obtained genetic resources should be disclosed in their application documents. Based on these two provisions, this paper makes a preliminary attempt and exploration on the protection of genetic resources from the patent system.
Why are there so many problems related to design in the third revision of the patent law?
Director Yin gave a detailed explanation on this issue. The patent system has only a history of more than 20 years in China. As far as the patent system is concerned, China is still in the stage of accumulating experience and understanding. For China, the patent system is still a relatively new thing. In the early days of the establishment of the patent system, our study and research mainly focused on inventions and utility models. Because inventions and utility models protect technology, they are in a more important position than design. Because in the early days, everyone put their study, research and absorption energy on inventions and utility models, which is understandable.
The legislation, the first revision and the second revision of the patent law are mainly aimed at inventions and utility models. Of course, some adjustments have been made to the design, but it is not the focus of the revision. With the development of the situation, China's understanding of the patent system is improving. At present, China ranks first in the world in terms of design patents, with a large number, and people's feelings are getting deeper and deeper. From this point of view, the third revision of China's patent law should improve the system and amend the law in terms of design, so as to further develop China's patent law in three aspects: invention, utility model and design.
Suggestions on the modification of exterior design
Director Yin said that design is the outstanding content of the third revision of the patent law, and we suggest taking relevant measures in five aspects: First, appropriately limiting the scope of granting design patents. Judging from the design applications accepted by China National Intellectual Property Administration at present, a considerable part only involves the improvement of the combination of graphics, colors or printed matter. The design of this kind of plane printed matter mainly plays the role of a sign, rather than improving the appearance of the product. If there are too many such designs, it is not conducive to promoting domestic designers to improve the level of product appearance design.
In addition, the design that only plays the role of logo will also increase unnecessary overlap and overlap with trademark rights and copyrights. In order to make designers pay more attention to the design of the product itself, we have to make some restrictions. The design patent right shall not be granted to the graphic, color or combination design only as a sign.
Second, improve the conditions of design authorization. The current patent law only stipulates that the patent right granted to a design cannot be the same as or similar to the previous design. Now we suggest further improvement in the draft. First, supplement the creative requirements similar to inventions and utility models. Compared with the existing design or the existing design combination, there should be obvious differences in granting the patent right for design. After adding this article, the standard of design authorization is obviously improved.
Third, we will allow applications for related designs. In reality, after making a basic design, a series of similar design schemes will be formed around the design. If it is stipulated that only one design scheme can be applied individually, it will be a great burden for the applicant and will not be conducive to its timely protection. In order to facilitate the applicant to obtain protection, we suggest that a complete set of design products can be allowed to apply for similar and related design schemes in addition to applications.
Fourth, establish a retrieval report system. Design, like utility model, is only a preliminary examination, not an actual examination. Without substantive examination, it is not clear in many cases whether the grant of this right conforms to the provisions of the patent law. In this case, the patentee is not sure whether his design meets this condition, which is often blind. No matter for the patentee or the public, it will bring adverse effects. In order to overcome this problem, we propose to introduce a retrieval report system, stipulating that if the patentee exercises his right to file an infringement lawsuit against the utility model and design patent, he must provide the retrieval report of the utility model or design to the relevant judicial organs and patent management departments.
Fifth, it is suggested that in the design application documents, the original brief description may or may not be freely selected as the necessary application documents. In the brief description, make some necessary textual descriptions of the design. Article 56 of the current law only stipulates that the scope of protection of design patents is represented by pictures or photographs, and the design product shall prevail. There are not only such provisions in the draft patent law, but also pictures and brief descriptions of photos that can be used to explain and explain, which provides a more scientific and reliable method for determining the scope of patent protection for design.
In a word, the measures to improve the design system are put forward from all aspects, and the improvement of the design system is in a very prominent position in our draft patent law.
The issue of compulsory licensing deserves attention.
Some netizens asked questions. Article 49 of the Exposure Draft and the Doha Ministerial Declaration of the World Trade Organization also stipulate the compulsory license in case of public health crisis. It is also one of the manifestations of paying attention to the public interest, but it is limited to special diseases and types. Are there any adjustments to the submission?
Director Yin said that compulsory licensing is a prominent feature of this revision of the patent law. Chapter VI makes considerable adjustments to compulsory licensing, including a chapter on the implementation of the Doha Ministerial Declaration of the World Trade Organization. If an epidemic occurs or spreads, which brings life safety and threat to the public, a compulsory license may be granted in accordance with the provisions of this article to produce a certain drug to meet the needs of the public.
Also, when there is a public health crisis in this country, from the humanitarian point of view, international agreements allow other countries to issue compulsory licenses, manufacture related drugs and export related drugs to other countries. This article is not only a response to international agreements, but also reflected in the legislation of many countries. It is necessary for China's patent law to reflect the development of international law from domestic law.
The observation of netizens is very detailed. The problem is that our country promulgated a regulation in 2005, which made a provision for compulsory licensing involving public health issues. In this Ordinance, we have proposed some scopes. In this revision of the patent law, we re-studied the wording of international agreements and the practices adopted by other countries, and we changed this original infectious disease into an epidemic.
China National Intellectual Property Administration put forward three suggestions to improve administrative law enforcement.
Administrative law enforcement is also an important aspect of this revision of the patent law. Wu, deputy inspector of the Department of Treaty and Law, said that administrative law enforcement is a feature of our national legal system, and our patent law protection is a combination of judicial protection and administrative protection. Administrative protection meets the development needs of national conditions. Because this system meets the needs of China's current national conditions, in this draft patent law, we put forward some contents about improving patent administrative law enforcement. These contents mainly include three aspects:
On the one hand, intentional infringers should not only bear civil liability, but also be subject to administrative punishment. Infringement, especially intentional infringement, will not only infringe the interests of the patentee, but also damage the social legal order to a certain extent. As administrative law enforcement, intentional infringement should be punished.
Secondly, it is illegal to impersonate and counterfeit patents. In China's current laws, the administrative penalties for these two acts are different. This time, the penalties for the two acts in the draft were revised to be the same, which means that they are consistent.
Third, the patent administration department found out the act of impersonating a patent and lacked the necessary means, which is also an unsolved problem in the two revisions of China's patent law. In order to better strengthen patent administrative law enforcement, adjust the means of obtaining evidence, and administer according to law, the draft patent law adds the necessary means for the patent administrative department to deal with infringement and investigate and deal with counterfeiting.
We should regulate the phenomenon that harms the legitimate rights and interests of the public.
At present, some experts and the public believe that there are some phenomena that harm the legitimate rights and interests of the public in practice, and they hope to regulate them. In view of this phenomenon, Director Yin pointed out that in the process of amending the patent law, there were heated discussions in various aspects on safeguarding the legitimate interests of the public and stopping the abuse of patent rights. The following points in the draft are related to this issue.
First, regarding compulsory license, under what circumstances can there be compulsory license. Article 48 of the current patent law stipulates that we have further improved it. A situation has been added. If the patentee's act of exercising the patent right is considered to restrict competition, in this case, a compulsory license may be issued. What kind of behavior is recognized as restricting competition is stipulated by the national anti-monopoly law and other laws. This other law works in conjunction with the patent law.
Secondly, it increases the defense and prohibition of malicious litigation in the prior art. In other words, if the evidence can prove that the technology and design implemented by the court are existing technologies or existing designs that the public can freely use during the patentee's litigation, the people's court can directly determine that they do not constitute infringement. This reduces some workload. This is of great help to reduce litigation costs and stabilize social relations as soon as possible. Once this is proved, it can be terminated or closed. On the other hand, China's utility models and designs failed to pass the substantive examination, and individual applicants applied for patents even though they knew that the technology to be patented was restricted. Moreover, they also filed an infringement lawsuit against other people's behavior according to this patent, which brought some interference to other people's economic activities. It is suggested to add one. In this case, the patentee still brings a lawsuit to the people's court knowing that the patent right belongs to the existing technology, and the accused infringer can ask the patentee to compensate for the losses, which can play a certain deterrent role.
Third, the statute of limitations. The limitation of infringement of patent right is two years, counting from the date of knowing. We added that patent infringement occurred in the form of continuous infringement. The amount of damages can be pushed forward for two years from the date of prosecution, and the behavior after prosecution can be stopped. This is a very important supplement. This revision of the Patent Law has been further refined on the basis of relevant judicial interpretations in the Supreme People's Court. The second limitation is that in real life, the patentee plays hard to get and releases water to raise fish, misleading others. After others further expand the scope of investment, it will take some time to file a lawsuit, leaving the other party in a very passive position. This behavior is also not conducive to the establishment of our normal economic order. In view of this phenomenon, we suggest adding a provision in the patent law. The silence of the patentee or interested party makes the infringing unit have reason to believe that the patentee or interested party will not claim the right of enforcement, and then bring a lawsuit to the people's court or request for handling. If the claim clearly violates the principle of honesty and trustworthiness, it has no right to obtain compensation for implementation, nor has it the right to order units and individuals to stop using it.
Fourthly, according to the TRIPS Agreement, countries have sufficient space on the issue of exhaustion principle. We suggest making corresponding provisions in the patent law, such as allowing parallel imports.
Fifthly, one article is added, except "BOLAR", which stipulates that the manufacture of patented drugs and pharmaceutical machinery for the purpose of providing administrative examination and approval information is not regarded as patent infringement. This will protect the public's interests and make it convenient for the public to obtain medicines and medical devices, which is of outstanding significance to the public's interests and people's life and health.
The management of patent right involves two aspects.
Deputy Director Song Jianhua said that there are two suggestions on the management of patent rights in the third revision of the Patent Law: First, the rules of rights and obligations between patentees or applicants are clarified. For the patentee of * * *, in the case of transferring the patent, taking the patent as pledge, or licensing others to implement it, it can only be implemented with the consent of all people without agreement. There are also corresponding provisions for the patentee to implement his own patent right. Unless otherwise agreed in the agreement, the patentee may independently exploit the patent right.
Also, the issue of approval. When an invention made in China is applied abroad, an application must first be made to China National Intellectual Property Administration. This application is a mandatory clause, but as far as this clause itself is concerned, there is no liability clause in the existing law, and there is no legal restriction when the parties fail to perform this obligation. We revised and improved the relevant regulations this time. If an invention-creation completed in China is directly applied to a foreign country without China National Intellectual Property Administration's approval or filed a patent application with China National Intellectual Property Administration, and then an application is filed with China for the same invention-creation, the patent application will not be approved.