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Patent Law of the People’s Republic of China (Revised in 2008)
Promulgation Date:2008-12-27  Promulgation Number:Order of the President of the People’s Republic of ChinaNo. 8  Promulgation Department:The Standing Committee of the National People's Congress

Order of the President of the People’s Republic of China

No. 8

 

The Decision of the Standing Committee of the National People’s Congress on the Revision of the Patent Law of the People’s Republic of China, which was passed at the 6th Session of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China on December 27, 2008, is hereby promulgated. It shall enter into force on October 1, 2009.

President of the People’s Republic of China Hu Jintao

December 27, 2008

 

Patent Law of the People’s Republic of China (Revised in 2008)

 

(Adopted at the 4th Session of the Standing Committee of the 6th National People’s Congress on March 12, 1984; amended by the Decision Regarding the Revision of the Patent Law of the People’s Republic of China, adopted at the 27th Session of the Standing Committee of the 7th National People’s Congress on September 4, 1992; amended for the second time by the Decision Regarding the Revision of the Patent Law of the People’s Republic of China, adopted at the 17th Session of the Standing Committee of the 9th National People’s Congress on August 25, 2000; and amended for the third time by the Decision Regarding the Revision of the Patent Law of the People’s Republic of China, adopted at the 6th Session of the Standing Committee of the 11th National People’s Congress on December 27, 2008)

Chapter 1 General Provisions

Article 1 This Law is formulated to protect the legitimate rights and interests of patentees, encourage inventions-creations, foster the application of inventions-creations, improve the innovative ability and facilitate scientific and technical progress and social and economic development.

Article 2 The inventions-creations herein refer to inventions, utility models and designs.

  Inventions refer to new technical plans for products and methods or improvement thereof.

  Utility models refer to new technical plans of practical utility for the shape and/or structure of products.

  Designs refer to new designs of aesthetic feeling and suitability to industrial application for the shape and/or pattern of products as well as the color and shape and pattern of products.

Article 3 The Patent Administrative Organ under the State Council is responsible for the patent work nationwide, receives and examines patent applications and grants patent rights for inventions-creations that conform to the provisions of this Law.

  The authorities for patent work under he people’s governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the patent administration work within their jurisdictions.

Article 4 Where an invention-creation for which a patent is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be handled in accordance with the relevant provisions of the State

Article 5 No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest.

  No patent right shall be granted for any invention-creation that is made on the basis of the generic resources which are obtained or utilized in violation of laws and administrative regulations.

Article 6 An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him by mainly using the material and technical means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.

  For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the application is approved, the inventor or designer shall be the patentee.

  For an invention-creation made by a person by using the material and technical means of the entity to which he belongs, and where the entity and the inventor or designer has entered into an agreement under which there is provision on who has right to apply for a patent and to whom the patent right belongs, the provisions of the agreement shall prevail.

Article 7 No entity or individual shall prevent the inventor or designer from filing an application for a patent for a non-service invention-creation.

Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made or jointly made the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.

Article 9 Only one patent right may be granted for the identical invention-creation. However, where the same applicant applies for the utility model patent and invention-creation patent for the same invention-creation in the same day, if the utility model patent which was obtained firstly has not terminated and the applicant declares to give up this utility model patent, the invention-creation patent may be granted to the applicant.

  Where two applicants or more file applications for the patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.

Article 10 The right to apply for a patent and the patent right may be assigned.

  For any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner, a foreign enterprise or other foreign organization, the entity or individual concerned shall go through the procedures for such assignment in accordance with the relevant laws and administrative regulations.

  Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract and should register it with the patent administrative organ under the State Council. The patent administrative organ shall announce the registration. The assignment will come into force upon the date of registration.

Article 11 After the grant of the patent right for an invention or utility model, except as otherwise provided herein, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.

  After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.

Article 12 Any entity or individual exploiting the patent of another shall conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent.

Article 13 After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

Article 14 For any patent for invention belonging to state-owned enterprises or entities, which is of great significance to national or public interests, the competent departments under the State Council as well as the people’s governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, after approved by the State Council, the said patented invention be spread and exploited within the prescribed scope and to allow designated entities to exploit it. The entities that exploit it shall, according to the prescriptions of the State, pay exploitation fees to the patentee.

Article 15 Where the joint owners of the right to apply for a patent or a patent right have an agreement between them, the agreement shall prevail. Otherwise, the joint owners may individually exploit the patent or authorize others to exploit the patent by means of general license. Where others are authorized to exploit the patent, the fees collected shall be shared by the joint owners.

  Except for the above-mentioned situations, the consent of all of the joint owners shall be obtained for the exploitation of a joint-owned right to apply for a patent or a patent right.

Article 16 The entity that is granted the patent right shall award to the inventor or designer of a service invention-creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or designer an appropriate remuneration based on the extent of exploitation and application and the economic benefits yielded.

Article 17 The inventor or designer has the right to be named as such in the patent document.

  The patentee has the right to affix a patent mark on the patented product or on the packing of that product.

Article 18 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated in accordance with any agreement concluded between the country to which the applicant belongs and China or any international treaty to which both countries are party or in accordance with this Law on the basis of the principle of reciprocity.

Article 19 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent agency duly established to act as his or its agent.

  Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency duly established to act as its or his agent.

  The patent agencies should abide by the laws and administrative regulations and should deal with patent applications and other patent matters according to the commissions of the clients. Except for those applications that have been published or announced, the agencies should bear the responsibility for keeping confidential the content of its clients’ inventions-creations. The administrative regulations for administering the patent agencies shall be formulated by the State Council.

Article 20 Where any entity or individual intends to file an application in a foreign country for a patent for its or his invention-creation made in China, it or he shall report to the patent administrative organ under the State Council for a secret inspection. The procedures and time limit for the secret inspection shall be subject to the provisions provided by the State Council.

  Any Chinese entity of individual may, according to the international treaties concerned to which China is a party, file an international application for patent for its or his invention-creation. The applicant for the international application should abide by the provisions of the preceding paragraph.

  The patent administrative organ under the State Council shall handle the international application for patent in line with the international treaty to which China is a party, this Law and the administrative regulations concerned made by the State Council.

  For any invention or utility model for which the patent has been applied in a foreign country in violation of the provisions as stipulated in Paragraph 1 herein, if the application for the patent for it in China is filed, no patent right shall be granted.

Article 21 The patent administrative organ under the State Council and the patent reexamination board subordinated to it shall handle patent applications and requests concerned according to law and in the spirit of objectiveness, justice, precision and punctuality.

  The patent administrative organ under the State Council shall release complete and accurate patent information in a timely manner, and publish patent communiqués periodically.

  Until the publication or announcement of the application for a patent, staff members of the patent administrative organ and other personnel involved have the duty to keep its content confidential.

Chapter 2 Requirements for Grant of Patent

Article 22 Any invention or utility model for which patent right may be granted must be of novelty, inventiveness and practical applicability.

  Novelty means neither the invention or utility model belongs to any existing technique, nor any entity or individual filed previously with the patent administrative organ under the State Council an application for the identical invention or utility model and it was recorded in any published patent application document or announced patent document after the date of application.

  Inventiveness means that, as compared with the existing technique, the invention has prominent substantive features and represents a notable progress and the utility model has substantive features and represents progress.

  Practical applicability means that the invention or utility model can be made or used and can produce effective results.

  The existing techniques herein refer to the techniques known to the public at both home and abroad before the date of application.

Article 23 Neither the design for which a patent right may be granted belongs to existing designs, nor any entity or individual has filed with the patent administrative organ under the State Council an application for the identical design before the date of application and it was recorded in any announced patent document after the date of application.

  The design for which a patent right may be granted shall be obviously different from any existing design or any combination of existing design features.

  The design for which a patent right may be granted shall not collide with any legitimate rights obtained by others before the date of application.

  The existing design herein refers to the designs known to the public at both home and abroad before the date of application.

Article 24 An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of application, one of the following events occurred:

(1)    Where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;

(2)    Where it was first made public at a prescribed academic or technological meeting; or

(3)    Where it was disclosed by any person without the consent of the applicant.

Article 25 For any of the following items, no patent right shall be granted:

(1)    Scientific discoveries;

(2)    Rules and methods for mental activities;

(3)    Methods for the diagnosis or the treatment of diseases;

(4)    Animal and plant varieties;

(5)    Substances obtained by means of nuclear transformation; and

(6)    Designs for the pattern or/and color on printed matters mainly used as marks.

For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

Chapter 3 Application for Patent

Article 26 Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.

  The request shall state the title of the invention or utility model, the name of the inventor, the name and the address of the applicant and other related matters.

  The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.

  The claims shall be supported by the description and shall state the extent of the patent protection asked for.

  For any invention-creation based on generic resources, an applicant shall state the direct source and the origin of the said generic resources in its/his patent application documents; if it/he cannot tell the origin, reasons shall be given.

Article 27 Where an application for a patent for design is filed, a request, drawings or photographs of the design as well as a brief description of the design shall be submitted.

  The drawings or photographs submitted by the applicant shall clearly show the design incorporated in a product for which patent protection is requested.

Article 28 The date on which the patent administrative organ under the State Council receives the application shall be the date of application. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of application.

Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

  Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the patent administrative organ under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.

Article 30 Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made.

Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.

  An application for a patent for design shall be limited to one design. Two or more similar designs for a product or two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

Article 32 An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

Chapter 4 Examination and Approval of Application for Patent

Article 34 Where, after receiving an application for a patent for invention, the patent administrative organ under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of application. Upon the request of the applicant, the patent administrative organ under the State Council may publish the application earlier.

Article 35 Upon the request of the applicant for a patent for invention, made at any time within three years from the date of application, the patent administrative organ under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn.

  The patent administrative organ under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary.

Article 36 When an applicant for a patent for invention requests examination as to substance, he or it shall furnish reference materials concerning the invention before the date of application.

  For an application for a patent for invention that has been already filed in a foreign country, the patent administrative organ under the State Council may ask the applicant to furnish within a prescribed time limit documents concerning any search made for the purpose of examining that application or concerning the results of any examination made in that country. If, without any justified reason, the said documents are not furnished within the prescribed time limit, the application shall be deemed to have been withdrawn.

Article 37 Where the patent administrative organ under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.

Article 38 Where, after the applicant has made the observations or amendments, the patent administrative organ under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.

Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administrative organ under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall come into force upon the date of the announcement.

Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administrative organ under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall come into effect upon the date of the announcement.

Article 41 The patent administrative organ under the State Council shall set up a Patent Reexamination Board. Where an applicant is not satisfied with the decision of the patent administrative organ under the State Council rejecting his application for patent, such applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.

  Where the applicant for patent who made the request for reexamination is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people’s court.

Chapter 5 Duration, Cessation and Invalidation of Patent Right

Article 42 The duration of patent right for inventions shall be twenty years, and the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of application.

Article 43 The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

Article 44 In any of the following cases, the patent right shall cease before the expiration of its duration:

(1)    Where an annual fee is not paid as prescribed; or

(2)    Where the patentee abandons his or its patent right by a written declaration.

Any cessation of the patent right shall be registered and announced by the patent administrative organ under the State Council.

Article 45 Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

Article 46 The Patent Reexamination Board shall timely examine the request for invalidation of the patent right, make a decision and notify the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered and announced by the patent administrative organ under the State Council.

  Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people’s court. The people’s court shall notify the opponent party of the party which has requested for the invalidation procedure to be represented the proceedings as the third party.

Article 47 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

  The decision of invalidation shall have no retroactive effect on any judgment or conciliation document on patent infringement which has been pronounced and enforced by the people’s court, on any decision concerning the handling of patent infringement which has been implemented or enforced, and on any contract of patent license and of assignment of patent right which have been performed, prior to the decision of invalidation; however, the damages caused to other persons in bad faith on the part of the patentee shall be compensated.

  If, pursuant to the provisions of the preceding paragraph, no repayment of the damages for patent infringement, the fee for the exploitation of the patent or the price for the assignment of the patent right is obviously contrary to the principle of equity, such damages or fees shall be repaid wholly or partly.

Chapter 6 Compulsory License for Exploitation of Patent

Article 48 In any of the following situations, the patent administrative organ under the State Council may, upon the application of the entity or individual that is qualified to exploit an invention or utility model, grant a compulsory license to exploit the patent for invention or utility model:

(1)     Where the patentee fails to exploit or fully exploit its/his patent without any justified reason within three years from the date on which the patent right was granted and within four years from the date on which the application for the patent was filed; or

(2)     Where the patentee’s exercise of it/his patent right is deemed as a monopoly practice according to law and the compulsory license is done for the purpose of eliminating or reducing the negative effects of such practice on competition.

Article 49 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50 For the purpose of public health, the patent administrative organ under the State Council may grant a compulsory license to produce and export the drugs with patent rights to the countries or regions as prescribed in the relevant international treaties to which China is a party.

Article 51 Where an invention or utility model for which the patent right was granted has major technical progress of prominent economic significance when compared with another invention or utility model for which the patent right has been granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier one, the patent administrative department of the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.
Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department of the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 52 Where an invention involved in a compulsory license is semiconductor technology, its application shall be confined to the purpose of public interests and the conditions as prescribed in Paragraph 2 of Article 48 of the Law.

Article 53 A compulsory license shall be applied mainly in the domestic market apart from those granted in accordance with Paragraph 2 of Article 48 and Article 50 of the Law.

Article 54 In accordance with Paragraph 1 of Article 48 and Article 51 of the Law, any entity or individual who applies for a compulsory license should offer evidences to prove that he asks for the permission of the patentee to use patent with rational conditions but fails to gain permission within rational time.

Article 55 The patent administrative organ under the State Council should timely inform the patentee and make registration and announcement to the public while making a decision on granting a compulsory license.

The decision on granting a compulsory license should be based on the scope and time prescribed on the ground of the compulsory license. Where the ground of a compulsory license is removed, the patent administrative organ under the State Council should on the request of the patentee make the decision on terminating a compulsory license in the wake of review.

Article 56 Any entity or individual that has been granted a compulsory license shall not enjoy the exclusive right to exploit or have the right to allow others to exploit.

Article 57 Any entity or individual that has been granted a compulsory license should pay rational royalty to the patentee or handle royalty in accordance with related international treaties acceded to by the People’s Republic of China. Where royalty is paid, both parties involved shall agree on the amount; where both parties involved fail to reach an agreement, the patent administrative organ under the State Council shall be responsible to make a ruling.

Article 58 Where a patentee is discontent with the decision of the patent administrative organ under the State Council on exploit a compulsory license or a patent and any entity or individual that has been granted a compulsory license are discontent with the ruling of royalty on exploiting a compulsory license made by the patent administrative organ under the State Council, he may file a lawsuit to the people’s court within three months upon receiving the notice.

Chapter VII Protection of Patent Right

Article 59 The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.
The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs, and brief description may illuminate the patented design as shown in the drawings or photographs.

Article 60 In the event that a dispute arises out of any exploitation of a patent without permission of the patentee, that is, the infringement of a patent right, the parties shall settle the dispute through negotiation. If they are not willing to negotiate or fail to reach an agreement through negotiation, the patentee or any interested party may either bring a lawsuit to the people’s court, or request the patent administrative department, for settlement. The patent administrative department may, if ascertaining at the time of settlement that there exists the infringement act, order the infringer to immediately stop the infringement act. The party dissatisfied may, within 15 days as of receipt of the notification, bring a lawsuit to the people’s court in accordance with the “Administrative Litigation Law of the People’s Republic of China”. If the infringer neither brings a lawsuit within the time limit nor stops the infringement act, the patent administrative department may apply to the people’s court for compulsory enforcement. The patent administrative department that settles the dispute may, upon request of the parties, hold a mediation regarding the compensation amount for infringement of the patent right. If no agreement can be reached through mediation, either party may bring a lawsuit to the people’s court in accordance with the “Civil Litigation Law of the People’s Republic of China.

Article 61 Where any dispute over infringement of a patent right is involved in a patent for invention for the manufacturing process of a new product, any entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process.

Where any dispute over infringement of a patent right is involved in a patent for utility model or patent right for design, the people’s court or the patent administrative department may require the patentee or interested party to issue the patent appraisal report after retrieval, analysis and assessment to act as the proof for trial and handling the dispute over infringement of a patent right.

Article 62 Where the alleged infringer has the evidence to prove that the technology or design exploited by him is the existing technology or design in the dispute over infringement of a patent right, no infringement of a patent right is constituted.

Article 63 Whoever counterfeits the patent of others shall, in addition to bearing civil liabilities in accordance with the law, be ordered by the patent administrative department to make a correction and be announced thereby, its/his illegal proceeds, if any, shall be confiscated, and it/he may be fined up to four times the illegal proceeds. If there are no illegal proceeds, it/he may be fined up to RMB200,000. If any crime is constituted, it/he shall be subject to criminal liabilities in accordance with the law.

Article 64 The patent management sector may in accordance with the proofs accessible inquire relevant party involved to investigate the matters related to illegal acts while investigating and punishing the act of counterfeiting the patent of other; to conduct on-site inspection of the place where the party involved is suspected of illegal act; to consult and copy the contract, invoice, books and other materials related to allegedly illegal act; and to inspect the products related to allegedly illegal act and may seal up or detain the products of counterfeiting the patent of others proven by proofs.

The party involved should offer coordination while the patent management sector executes the aforesaid duties by law.

Article 65 The amount of compensation for infringement upon a patent right shall be determined on the basis of the actual losses suffered by the right-holder due to infringement. If the actual losses of the aggrieved party by the infringer are difficult to determine, they may be determined in the proceeded gained by the infringer. If the losses of the aggrieved party or the proceeds gained by the infringer are difficult to determine, they may be determined in a reasonable way with reference to the multiple of the royalties for this patent. The amount of compensation should also contain the reasonable expenditures of the right-holder for preventing the act of infringement.

Where the losses of the right-holder, the proceeds gained by the infringer and royalty are all difficult to determine, the people’s court may in accordance with the type of patent, nature and details of infringement and other elements determine the compensation of more than RMB10,000 to less than RMB1m.

Article 66 Where the patentee or party involved has the evidence to prove that the act of infringement of patent being done or to be done by the third party will trigger fatal damage to its/his legal rights and interests if no timely prevention is made, it/he may apply to the people’s court for the measures to order the third party to quit related act before filing a lawsuit.

An applicant should tender guarantee while filing an application; where no guarantee is offered, the application shall be rejected.

The people’s court should make a ruling within 48 hours upon accepting the application. Where the time shall be extended in particular situation, it may extend another 48 hours. Where a ruling is made that related act is ordered to quit, it should be executed immediately. If the party involved is discontent with the ruling, it/he may apply for reconsideration; but the execution of ruling shall not be suspended during the reconsideration.

Where the applicant fails to file a lawsuit within fifteen days upon the day when the people’s court takes measures to order the stop of related act, the people’s court should remove the measures.

Where application is wrong, the applicant should compensate the losses of the respondent for suspending related act.

Article 67 To prevent the act of infringement of patent, the patentee or the party involved may apply to the people’s court for conserving evidence in the situation where evidence may be destroyed or difficult to gain in future.

The people’s court may order the applicant to offer guarantee while taking the conservatory measures; where the applicant does not offer guarantee, its application shall not be rejected.

The people’s court should make a ruling within 48 hours upon accepting the application; where a ruling is made that the conservatory measures are taken, it should be executed immediately.

The applicant fails to file a lawsuit within fifteen days upon the day when the people’s court take the conservatory measures, the people’s court should remove the measures.

Article 68 Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.
Where anyone uses an invention after the application for a patent for this invention is published but before the patent right is granted without paying adequate royalties, the statute of limitations for the patentee to claim the payment of such royalties shall be two years, commencing from the date when the patentee knows or ought to know that his invention is used by some else. However, if the patentee has known or ought to know this fact prior to the date when the patent right is granted, the statute of limitations shall commence from the date when the patent right is granted.

Article 69 None of the following shall be deemed an infringement of the patent right:

(1)    Anyone uses, promises the sale, sales or import of a patented product or product directly gained by means of patent after being sold by the patentee or the authorized entity or individual;

(2)    Anyone who has made the identical product or used the identical process or has made necessary preparations for making such a product or using such a process prior to the date of filing continues making such a product or using such a process only within the original scope;

(3)    Any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned in accordance with any agreement concluded between China and that country to which the foreign means of transport belongs, or in accordance with any international treaty to which both countries have acceded, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;

(4)    Any person uses the patent concerned solely for the purposes of scientific research and experimentation; and

(5)    Any person offers information needed in the administrative approval to manufacture, use and import patented drugs or patented medical equipment and specially manufacture and import patented drugs or patented medical equipment for him.

Article 70 Whoever uses, promises to sell or sells a patented product without knowing that the product was made and sold without permission of the patentee need not bear liabilities for compensation provided that it/he can prove that the product is obtained through legal avenues.

Article 71 Where any person, in violation of the provisions of Article 20 of this Law, unauthorizedly files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. If the circumstances are serious, he shall be prosecuted for his criminal liability according to the law.

Article 72 Where any person usurps the right of an inventor or creator to apply for a patent for a non service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level.

Article 73 No patent administrative department shall participate in the business activities such as recommending patented products to the public.
Where a patent administrative department violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or its supervision organ to make a correction and clear up the ill effects. The illegal proceeds, if any, shall be confiscated. If the circumstance is serious, the person-in-charge held directly responsible and other persons held directly liable shall be given administrative sanctions in accordance with the law.

Article 74 Where any staff member of a state organ for patent administration or of any other relevant state organ neglects his duties, abuses his powers, practices favoritism for himself or his relative, and a crime is constituted, he shall be subject to criminal liabilities in accordance with the law. If no crime is constituted, he shall be given administrative sanctions in accordance with the law.

Chapter VIII Supplementary Provisions

Article 75 Any application for a patent filed with, and any other proceedings before, the patent administrative department of the State Council shall be subject to the payment of a fee as prescribed.

Article 76 This Law shall come into force on April 1, 1985.

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