Decision of the Standing Committee of the National People's Congress on the amendment of the patent law of the people's Republic of China

1、 The fourth paragraph of Article 2 is revised to read: "appearance design refers to a new design which is aesthetic and suitable for industrial application made for the whole or part of the product's shape, pattern or combination of color, shape and pattern."

2、 The first paragraph of Article 6 is amended to read: "the invention creation which is mainly made by the use of the material and technical conditions of the unit to perform the tasks of the unit is the creation of the job invention. The right to apply for a patent for a job invention creation belongs to the unit. After the application is approved, the unit is the patentee. The unit may dispose of the right and patent right of applying for patent for the invention creation of its duty according to law, and promote the implementation and application of relevant invention creation. "

3、 Change article 14 to Article 49.

4、 Article 16 is changed into Article 15, with a new paragraph added as the second paragraph: "the State encourages the units granted patent rights to implement property rights incentive, and adopt equity, options, dividends and other ways to make the inventor or designer reasonably share the innovation income."

5、 Add one article as Article 20: "the principle of honesty and credit shall be followed in the application for patent and the exercise of patent right. No abuse of the patent right shall damage the public interest or the legitimate rights and interests of others.

"Any abuse of patent rights, exclusion or restriction of competition, which constitutes a monopoly shall be dealt with in accordance with the anti-monopoly law of the people's Republic of China."

6、 Delete the "and its Patent Reexamination Board" in Article 21, paragraph 1.

The second paragraph is amended as: "the patent administration department under the State Council shall strengthen the construction of the public service system for patent information, publish patent information completely, accurately and timely, provide basic patent data, publish patent bulletins regularly, and promote the dissemination and utilization of patent information."

7、 Add one item to Article 24 as the first: "1) for the first time in case of emergency or extraordinary situation of the state, it is made public for the purpose of public interest".

8、 Article 25, paragraph 1, paragraph 5, is amended to read: "5) methods of nuclear conversion and substances obtained by nuclear conversion".

9、 The second paragraph of Article 29 is amended as: "if the applicant has filed a patent application for the same subject matter to the patent administration department under the State Council within 12 months from the date of the first patent application for invention or utility model in China, or within six months from the date of the first patent application for design in China, the applicant may have the priority."

10、 Article 30 is amended to read: "if the applicant requests the priority of patent for invention or utility model, he shall make a written statement at the time of application, and submit a copy of the patent application document first filed within 16 months from the date of the first application.

"Where the applicant requests the priority of a design patent, it shall make a written statement at the time of application and submit a copy of the patent application document first filed within three months.

"If the applicant fails to make a written statement or fails to submit a copy of the patent application document within the time limit, it shall be deemed that no priority has been claimed."

11、 Article 41 is amended as: "if the patent applicant is not satisfied with the decision of the patent administration department under the State Council to reject the application, he may, within three months from the date of receiving the notice, request a reexamination from the patent administration department under the State Council. After reexamination, the administrative department for patent under the State Council shall make a decision and notify the patent applicant.

"If the patent applicant is not satisfied with the decision of reexamination of the administrative department for patent under the State Council, he may, within three months from the date of receiving the notice, bring a suit in the people's court."

12、 Article 42 is amended as follows: "the period of patent for invention is 20 years, the term of patent for utility model is 10 years, and the period of patent right for design is 15 years, which shall be calculated from the application date.

"If the patent for invention is granted for four years from the date of application for an invention patent and three years after the date of the substantive examination request, the patent administration department under the State Council shall, at the request of the patentee, compensate for the unreasonable delay in the process of authorization of the invention patent, except for unreasonable delay caused by the applicant.

"In order to compensate for the time occupied by the examination and approval of the new drug listing, the patent administration department under the State Council shall, at the request of the patentee, compensate for the patent period for the patent related invention patents obtained the listing license in China. The compensation period shall not exceed five years, and the total effective patent right period after the approval of new drug listing shall not exceed 14 years. "

13、 The "Patent Reexamination Committee" in articles 45 and 46 is amended to "the patent administration department under the State Council".

14、 The chapter name of Chapter 6 is revised to "special license for patent implementation".

15、 Add one article as Article 48: "the patent administration department under the State Council and the Department of the local people's Government in charge of patent work shall take measures together with the relevant departments at the same level to strengthen public service for patent and promote the implementation and application of patent."

16、 Add one article as Article 50: "if the patentee voluntarily declares in writing to the patent administration department under the State Council that he is willing to permit any unit or individual to implement his patent, and specifies the payment method and standard of the license fee, the patent administration department under the State Council shall make a public announcement and implement the opening license. If an open license statement is made for utility model or design patent, an evaluation report on patent right shall be provided.

"If the patentee withdraws the declaration of the opening license, it shall be made in writing and shall be announced by the patent administration department under the State Council. The withdrawal of the declaration of an open license shall not affect the effectiveness of the opening permit given earlier. "

17、 Add one article as Article 51: "if any unit or individual has the intention to implement an open license patent, it shall notify the patentee in writing and obtain the patent implementation license after paying the license fee according to the payment method and standard of the license fee announced.

"During the implementation of the opening license, the patentee shall be given a corresponding reduction or exemption for the annual fee of the patent.

"The patentee who implements the open license may, after consultation with the licensee on the licensing fee, give a general license, but shall not grant exclusive or exclusive permission to the patent."

18、 Add one article as Article 52: "if a dispute arises between the parties concerning the implementation of the opening-up license, the parties shall settle the dispute through consultation; if they are unwilling to negotiate or fail to reach a consensus, they may request the patent administration department under the State Council for mediation or may bring a suit in a people's court."

19、 Article 61 shall be changed to Article 66 and the second paragraph amended to read: "if a patent infringement dispute involves a utility model patent or design patent, the people's court or the Department in charge of patent work may require the patentee or interested party to issue the relevant utility model or design after the search, analysis and evaluation of the relevant utility model or design by the patent administration department under the State Council The patent appraisal report made shall be used as evidence for hearing and handling patent infringement disputes; the patentee, interested party or the accused infringer may also actively issue the patent right evaluation report. "

20、 Article 63 is changed to Article 68, and amended to read: "in addition to assuming civil liability according to law, the Department in charge of patent law enforcement shall order the counterfeiting of a patent to make a correction and make a public announcement. The illegal income shall be confiscated and a fine of not more than five times the illegal income may be imposed; if there is no illegal income or the illegal income is less than 50000 yuan, a fine of not more than 250000 yuan may be imposed; if the illegal income is less than 50000 yuan, a fine of not more than 250000 yuan may be imposed; if the illegal If a crime is committed, criminal responsibility shall be investigated according to law. "

21、 Article 64 is changed to Article 69 and amended to read: "when investigating and punishing suspected acts of counterfeit patent according to the evidence obtained, the Department in charge of patent law enforcement shall have the right to take the following measures:

"(1) to inquire the parties concerned and investigate the situation related to the suspected illegal act;

"(2) to conduct on-site inspection on the place where the parties are suspected of illegal acts;

"(3) to consult and copy contracts, invoices, books of account and other relevant information related to suspected illegal acts;

"(4) to inspect products related to suspected illegal acts;

"(5) products that have evidence proving to be counterfeit patents may be sealed up or seized.".

"When the Department in charge of patent work handles patent infringement disputes at the request of the patentee or interested party, it may take the measures listed in items (1), 2 and 4 of the preceding paragraph.
"When the departments responsible for patent law enforcement and the departments in charge of patent work exercise the functions and powers prescribed in the preceding two paragraphs in accordance with law, the parties shall assist and cooperate with each other, and shall not refuse or obstruct them."

22、 Add one article as Article 70: "the patent administration department under the State Council may, at the request of the patentee or interested party, handle patent infringement disputes that have a significant impact throughout the country.
"The departments in charge of patent work of local people's governments shall, at the request of the patentee or interested parties, handle patent infringement disputes, and may deal with cases infringing the same patent right within their respective administrative regions; and for cases that infringe the same patent right across regions, they may be dealt with by the departments of the local people's governments at the next higher level to handle the patent work."

23、 Article 65 is changed to Article 71, and is revised to read: "the amount of compensation for infringement of the patent right shall be determined according to the actual loss suffered by the obligee due to the infringement or the interests of the infringer due to infringement; if the loss of the obligee or the interests obtained by the infringer are difficult to determine, the multiple of the royalty for the patent license shall be reasonably determined. If the circumstances are serious in case of intentional infringement of the patent right, the amount of compensation may be determined at least one time but not more than five times the amount determined in accordance with the above methods.

"If the loss of the obligee, the interests obtained by the infringer and the royalty for the patent license are difficult to determine, the people's court may, based on the type of patent right, the nature and circumstances of the infringement, determine to give compensation of less than 30000 yuan but not more than RMB 5 million.

"The amount of compensation shall also include 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 books and materials related to the infringement if the obligee has tried his best to prove the amount of compensation, and the books and materials related to the infringement are mainly in the possession of the infringer; if the infringer fails to provide or provide false books and materials, the people's court may judge the case by referring to the claims and evidence provided by the obligee The amount of compensation. "

24、 Article 66 is changed to Article 72, and amended to read: "the patentee or interested party has evidence that others are carrying out or is about to commit the act of infringing the patent right or impeding the realization of their rights. If the act is not stopped in time, it will cause irreparable damage to its legal rights and interests, it may apply to the people's court for property preservation and responsibility before the prosecution Measures to order a certain act or to prohibit the making of a certain act. "

25、 Article 67 is changed to Article 73 and amended to read: "in order to stop patent infringement, in case the evidence may be lost or difficult to obtain later, the patentee or interested party may apply to the people's court for preservation of evidence in accordance with law before proceeding."

26、 Article 68 is changed to Article 74, and is amended to read: "the limitation of action for infringement of patent right is three years, calculated from the date when the patentee or interested party knows or should know the infringement and the infringer.

"If the patent for invention is not paid a proper use fee after the application for invention is published and before the patent right is granted, the time limit for litigation for the patentee to pay the royalty shall be three years. The time limit for litigation shall be calculated from the date when the patentee knows or should know that others use the invention. However, if the patentee has known or should know before the date of the patent right award, the time limit for the patent right shall be counted from the date of the grant of the patent right "Count."

27、 Add one article as Article 76: "in the process of drug listing review and approval, if the applicant for drug listing license disputes with the relevant patentee or interested person over the patent right related to the drug that is applied for registration, the relevant parties may file a lawsuit in the people's court and request whether the relevant technical scheme of the drug applied for registration falls into the patent right of another person The scope of protection is adjudicated. The drug regulatory department under the State Council may, within the prescribed time limit, make a decision on whether to suspend approval of the listing of relevant drugs according to the effective judgment of the people's court.
"The applicant for drug listing license and the relevant patentee or interested party may also apply to the administrative department for patent under the State Council for administrative adjudication on patent rights disputes concerning the drugs that are applied for registration.

"The drug regulatory department under the State Council, together with the patent administration department under the State Council, shall formulate specific measures for the connection between the approval of drug listing license and the dispute resolution of patent right in the application stage of drug listing license, which shall be implemented after being submitted to the State Council for approval."

28、 Delete Article 72.

29、 Article 73 is changed to Article 79, article 74 to Article 80, and the "administrative punishment" is changed to "punishment".

This decision shall come into effect as of June 1st, 2021.
The patent law of the people's Republic of China shall make corresponding amendments in accordance with this decision and make corresponding adjustments to the order of the provisions and re publish them. (Xinhua News Agency)