IP Newsletter Issue 36 (2019-03-18)
 
About “Patent Law (Draft Amendment)”

Currently, the “Patent Law of the People's Republic of China (Draft Amendment)” has ended its public consultation; this article will introduce the main contents of the “Patent Law of the People's Republic of China (Draft Amendment)”.

The draft mainly grasps the following three points in the general thoughts: the first one is to strengthen the protection of the legitimate rights and interests of patentees. The second one is to promote patent implementation and application. The third one is to raise the maturity acts proved by practice to legal norms, specific as follows.

I. Strengthening the protection of the legitimate rights and interests of patentees

The first one is to increase compensation for patent infringement. For example, stipulates that: in the case of intentional infringement of patent right, if the circumstances are serious, the court may determine the amount of compensation at its discretion where it is difficult to calculate the amount of compensation, increased from 10,000 RMB to 1,000,000 RMB as stipulated in the current Patent Law to 100,000 RMB to 5,000,000 RMB. (Article 18, paragraphs 1 and 2)
The second one is to improve the burden of proof.
The third one is to improve patent administrative law enforcement. For example, adding the stipulation that: the patent administration department under the State Council may, at the request of the patentee or interested party, handle any dispute over patent infringement that has a significant impact throughout the country. (Article 16)
The fourth one is to clarify the joint liability of network service providers for network infringement. (Article 17)
The fifth one is to clarify the principle of honesty and prohibition of abuse of rights. (Article 2)
In addition, it is proposed to increase the compensation system for innovative pharmaceutical invention patents term.

II. Promoting patent implementation and application

The first one is to clarify the enterprise’s right to the disposal of service invention-creation. (Article 1)
The second one is to strengthen patent conversion services. (Articles 3 and 9)
The third one is to establish a new patent open licensing system. (Articles 10 and 11)

III. Improving the patent authorization system

The first one is to newly establish a domestic priority system for design patent application. Stipulates that: the applicant who, within six months from the date on which the design patent application was first filed in domestic, files a domestic patent application on the same subject matter may enjoy the right of priority. (Article 5)
The second one is to optimize the procedure of claiming priority. Relax the time limit for patent applicants to submit copies of their first patent application documents. (Article 6)
For the patent application for invention or utility model, where the applicant claims the right of priority and makes a written declaration at the time of application, he may, within 16 months from the date of filing a patent application for invention or utility model for the first time or within three months from the date of filing an industrial design patent application, submit a copy of the patent application documents for the first time.
The third one is to extend the protection term of the patent right for industrial design. Adapting to the need of China’s accession to “the Hague Agreement” on the protection of industrial designs, the protection term of industrial design patents is extended from ten years specified in the current Patent Law to fifteen years. (Article7)