Encouraging innovation and strengthening patent protection is the main theme of this revision of the patent law, which runs through the whole process of the patent law. When the Patent Law was revised for the second time in 2000, it was stipulated: "This Law is formulated in order to protect the patent right of invention and creation, encourage invention and creation, facilitate the popularization and application of invention and creation, promote scientific and technological progress and innovation, and meet the needs of socialist modernization." Compared with the previous patent law, this article mainly highlights the significance and role of "scientific and technological innovation", which makes "innovation" gain an unprecedented position in China's patent law for the first time. This revision of the patent law has further enhanced the great significance and mission of patent legislation to promote innovation. Provisions: "This Law is formulated in order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation ability, and promote scientific and technological progress and economic and social development". Compared with the patent law in 2000, it mainly emphasizes "improving innovation ability", and at the same time changes "popularization and application beneficial to invention creation" to "application promoting invention creation", which strengthens the function and role of patent law in promoting invention creation and is consistent with "improving innovation ability". This revision has profound practical reasons and forward-looking significance, which proves that China has taken improving the ability of independent innovation and building an innovative country as its national policy and strategic measures.
(B) focus on improving the quality of patents
At the initial stage of the implementation of the Patent Law, due to the relatively backward level of economic, scientific and social development at that time, the ability of invention and independent innovation was insufficient. In order to encourage invention and creation and ensure the original accumulation and later growth of patent application and authorization, lower standards were adopted for patent authorization conditions. For example, in the novelty standard of invention, utility model and design patent, the absolute novelty standard of most countries is not adopted, but a more relaxed relative novelty standard is adopted, that is, different geographical scope is stipulated for existing technology and existing design. This relatively novel standard not only lightens Patent examiners's burden of examining patent applications, but also appropriately increases the number of patents, which improves the enthusiasm of patent applications to a certain extent and increases the stability of patent rights.
With the continuous improvement of the patent system and the continuous enhancement of innovation ability, the number of patent applications in China has increased year by year. As of March 2009, the total number of patent applications accepted by * * * exceeded 5 million. The number of patents granted has also maintained a high growth rate. By the end of June 5438+February 2008, * * * had granted more than 2.5 million patents, and the number of patents granted in recent five years accounted for nearly 60% of the total patents granted in the 23 years since the implementation of the Patent Law. While the absolute number of patent applications and authorizations in China ranks among the top in the world, there is still a big gap between China and the world's patent powers in terms of patent quality measurement indicators such as the number of effective patents and the mastery of key technology patents. The problems faced by patent law have changed into how to improve the quality of patents and how to give full play to the patent system to promote independent innovation. Therefore, it is necessary to promote the optimization of patent quality through strict patent authorization standards and other measures.
In the third revision of the patent law, the standard of patent novelty was changed from relative novelty to absolute novelty. At the same time, the design patent system has been reformed, and the "creativity" standard of similar inventions and utility model patents has been added, so as to avoid obtaining patents for designs formed by imitating existing designs or simply piecing together existing design features. It is stipulated that "the design that mainly plays a symbolic role in the pattern, color or combination of the two of plane printed matter" shall not be granted a patent right; The patent application system of related designs is introduced. By fully protecting the legitimate rights and interests of applicants for design patents, they can be encouraged to engage in design innovation, thus promoting the overall level of design in China.
(3) Strengthen patent protection
As a kind of private right to protect the achievements of inventions and creations, patent right, with its exclusiveness and exclusiveness, enables related inventions and creations to be monopolized by the obligee in accordance with the law within a certain period of time, and the innovation can be rewarded by exploiting the patent by itself or licensing others to exploit the patent. The patent legal system protects this exclusive right from the level of national legislation, which is helpful to stimulate people's enthusiasm for innovation and promote the development of science and technology. The third revision of the Patent Law expanded the scope of patent protection, increased the intensity of administrative punishment and improved the protection measures for patentees.
1, expanding the scope of patent protection
Paragraph 2 of Article 1 1 of the new Patent Law stipulates: "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." The "promised sales right" of the design patentee is increased, so that the three kinds of patent protection can be balanced and the rights and interests of the design patentee can be better safeguarded.
2. The intensity of administrative punishment has been improved.
Patent protection in China adopts two ways: administrative protection and judicial protection. Practice has proved that patent administrative law enforcement conforms to China's national conditions and plays an important role in stopping patent infringement in time, safeguarding the legitimate rights and interests of patentees and maintaining the stability of social and economic relations. Because patent administrative law enforcement has been playing an important role in patent protection in China, the new patent law not only retains this model, but also raises the standard of administrative punishment, and strengthens the patent administrative law enforcement authority with reference to the provisions of intellectual property laws such as trademark law and copyright law. Specifically, it is reflected in the following two aspects:
First, the punishment for counterfeiting other people's patents and counterfeiting patents has been integrated, and the standard of administrative punishment has been raised. In 2008, the Patent Law merged Article 58 and Article 59 of the Patent Law of 2000 into Article 63, which was amended as: "In addition to bearing civil liability according to law, the patent administration department shall order it to make corrections and make a public announcement, confiscate the illegal income, and may concurrently impose a fine of less than four times the 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. "
Second, the administrative department in charge of patent work has been given the necessary administrative law enforcement means to investigate and deal with counterfeiting. In 2008, one article was added to the Patent Law 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 stipulated in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct. " This article is similar to the provisions of Article 55 of China's current Trademark Law, aiming at strengthening patent administrative law enforcement and further strengthening the protection of patent rights by giving the patent management department the administrative authority to investigate and deal with counterfeiting.
3. Improve measures to protect patentees.
This revision clearly includes the cost of rights protection of the obligee into the scope of tort compensation, which improves the protection of the patentee's property. At the same time, the provisions on interim measures before litigation and evidence preservation have been added, which further increases the legal guarantee for actively protecting the rights and interests of patentees.
First, it is clear that the compensation for patent infringement should include the expenses of the right holder's rights protection, and the provisions on statutory compensation have been added. Article 60 of the Patent Law in 2000 stipulates: "The amount of compensation for infringement of patent rights shall be determined according to the 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 infringer or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. " There are two problems in this provision: first, it is not clear which one should be chosen as the priority calculation method for the losses suffered by the obligee and the benefits gained by the infringer due to infringement; Second, how to determine the amount of compensation for patent infringement is not considered when the three methods specified in it are difficult to calculate. In order to solve the above problems, the new patent law stipulates that the amount of compensation for patent infringement should 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 patent license fee, the people's court may determine the compensation ranging from 6,543,800 yuan to 6,543,800 yuan according to the type of patent right, the nature and circumstances of the infringement and other factors. In this way, on the one hand, it increases the operability of determining the amount of damages in patent infringement disputes; On the other hand, the statutory compensation system for patent infringement damage has been clearly established, which is consistent with the provisions of the Copyright Law and the Trademark Law.
Second, the provisions on interim measures before litigation and evidence preservation before litigation have been added. In practice, sometimes there will be acts of infringing the patentee's patent right, which will cause irreparable damage to the patentee's legitimate rights and interests if not stopped in time. However, according to the usual litigation procedure, it is necessary to sue first, and the judgment of the people's court will take legal effect, so as to completely stop the infringer's infringement of patent rights. At this point, the infringement has occurred and even caused serious consequences. Therefore, in order to fully protect the legitimate rights and interests of patentees, the patent legislation of many countries has stipulated "interim measures" before litigation, that is, applying to the court for an order to stop related acts before litigation. This system was added to the Patent Law when it was revised for the second time in 2000. In 2008, the Patent Law specially stipulated the procedure of ordering to stop relevant acts before litigation, which is convenient for practice. In addition, in order to prevent the infringer from transferring or destroying the evidence before the patentee files a lawsuit, it is added that in order to stop the patent infringement, in the case that the evidence may be lost or difficult to obtain later, the obligee may apply to the people's court for evidence preservation before filing a lawsuit.
(D) to further promote the application of technology
On the one hand, the new "Patent Law" stipulates that the owner of the patent right * * * can exploit it alone or license others to exploit it by ordinary license. It not only ensures the legal right of * * * people to own patents on * * *, but also promotes the implementation of * * * patents. Provisions to prevent the abuse of patent rights have been added, and compulsory licensing measures have been further clarified for acts of not implementing or not fully implementing their patents and monopolistic acts caused by exercising patent rights. Promote the circulation, popularization and application of patented technology. On the other hand, in order to prevent malicious use of known existing technologies to apply for patents, hinder the implementation of existing technologies, and help the implementers of existing technologies get rid of patent infringement disputes in time, the defense principle of existing technologies is introduced, stipulating that the implemented technologies belong to existing technologies and do not constitute patent infringement.
(5) Fulfilling international treaties
Abiding by international conventions and rules on intellectual property rights has always been one of the important principles of intellectual property legislation in China. China's patent law embodies the spirit of these international rules in a series of system designs such as authorization standard, protection level and compulsory license. In order to meet the patent requirements of relevant international conventions and fulfill foreign commitments, it is necessary and necessary to amend the relevant contents of the patent law in a timely manner according to the latest development of international intellectual property conventions and China's accession to international conventions. The third revision of the Patent Law reflects the convergence with international treaties in the protection of genetic resources, compulsory licensing of patented drugs for public health purposes, etc., stipulating that inventions that rely on genetic resources should indicate the source of genetic resources, and inventions that are illegally obtained or utilized on this basis are not granted patent rights; The provision of Bolar exception for drugs and medical devices has been added, so that the public can get cheaper generic drugs and medical devices in time after the patent protection period of drugs and medical devices expires, which is of great significance to solving public health problems.