Patent Law Article 26, Paragraph 4: The claims shall be based on the description and clearly and briefly define the scope of patent protection requested.
Article 26 of the Patent Law?
When applying for a patent for invention or utility model, a request, description, abstract, claims and other documents shall be submitted.
The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters.
The description shall provide a clear and complete description of the invention or utility model, which shall be subject to the ability of a skilled person in the relevant technical field to realize it; when necessary, there shall be accompanying drawings. The abstract should briefly describe the technical key points of the invention or utility model.
The claims should be based on the description and clearly and briefly define the scope of patent protection requested.
For inventions and creations that rely on genetic resources, the applicant shall state the direct source and original source of the genetic resource in the patent application document; if the applicant cannot explain the original source, the applicant shall state the reasons.
Extended information
Patent Law of the People's Republic of China
Chapter 1 General Provisions
Article 1 To protect patent rights This law is formulated to protect people's legitimate rights and interests, encourage inventions and creations, promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development.
Article 2 The inventions and creations referred to in this Law refer to inventions, utility models and designs.
Invention refers to a new technical solution proposed for a product, method or improvement thereof.
Utility model refers to a new technical solution proposed for the shape, structure or combination of a product that is suitable for practical use.
Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of the product, as well as the combination of color, shape, and pattern.
Article 3 The Patent Administration Department of the State Council is responsible for managing patent work nationwide; it shall uniformly accept and examine patent applications and grant patent rights in accordance with the law.
The patent management departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are responsible for patent management within their respective administrative regions.
Article 4 If the invention-creation for which a patent is applied for involves national security or major interests and needs to be kept confidential, it shall be handled in accordance with relevant national regulations.
Article 5 No patent rights will be granted for inventions and creations that violate the law, social ethics or harm the interests of the public.
Patent rights will not be granted for inventions and creations that are obtained or utilized in violation of laws and administrative regulations and relied on such genetic resources.
Article 6 Inventions and creations completed while performing the tasks of the unit or mainly utilizing the material and technical conditions of the unit are service inventions and creations. The right to apply for a patent for a service invention-creation belongs to the unit; after the application is approved, the unit becomes the patentee.
For non-service inventions, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer becomes the patentee.
For inventions and creations completed by utilizing the unit’s material and technical conditions, if the unit has a contract with the inventor or designer, and stipulates the right to apply for a patent and the ownership of the patent right, such agreement shall prevail.
Article 7 No unit or individual may suppress an inventor or designer’s non-service invention-creation patent application.
Article 8 For inventions and creations completed by cooperation between two or more units or individuals, or for inventions and creations completed by one unit or individual under the entrustment of other units or individuals, unless otherwise agreed upon, the right to apply for a patent shall belong to The unit or individual who completes or co-completes the application; after the application is approved, the unit or individual who applied is the patentee.
Article 9 Only one patent right can be granted for the same invention and creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention and creation on the same day, and the utility model patent right obtained first has not yet expired, and the applicant declares that he has given up the utility model patent right, the invention patent right may be granted.
If two or more applicants apply for a patent for the same invention, the patent right shall be granted to the person who applies first.
Article 10 The right to apply for a patent and the patent right may be transferred.
When Chinese entities or individuals transfer patent application rights or patent rights to foreigners, foreign enterprises or other foreign organizations, they must go through the procedures in accordance with the provisions of relevant laws and administrative regulations.
To transfer patent application rights or patent rights, the parties shall enter into a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of patent application rights or patent rights takes effect from the date of registration.
Article 11 After an invention or utility model patent right is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not For the purpose of production and business operations, manufacture, use, offer for sale, sell, and import its patented products, or use its patented methods and use, offer for sale, sell, and import products directly obtained according to the patented method.
After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, the design patent shall not be manufactured, offered for sale, sold, or imported for production and business purposes. product.
Article 12 Any unit or individual that exploits another person’s patent shall enter into an exploitation license contract with the patentee and pay patent royalties to the patentee. The licensee has no right to allow any unit or individual other than those specified in the contract to exploit the patent.
Article 13 After the invention patent application is published, the applicant may require the unit or individual who implements the invention to pay appropriate fees.
Article 14 If the invention patents of state-owned enterprises and institutions are of great significance to national interests or public interests, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government shall report to the State Council for approval. It can be decided to promote the application within the approved scope and allow designated units to implement it. The implementing unit will pay royalties to the patentee in accordance with national regulations.
Article 15 If the holder of the right to apply for a patent or the patent right has an agreement on the exercise of the right, the agreement shall prevail. If there is no agreement, the first owner can implement the patent alone or license others to implement the patent in the form of a general license; if the patent is licensed to others, the royalties collected shall be distributed among the first owners.
Except for the circumstances specified in the preceding paragraph, the exercise of the owner’s patent application right or patent right shall require the consent of all owners.
Article 16 The unit that is granted the patent right shall reward the inventor or designer of the service invention-creation; after the invention-creation patent is implemented, the unit shall reward the invention-creation patent based on the scope of its promotion and application and the economic benefits achieved. The inventor or designer shall be given reasonable remuneration.
Article 17 The inventor or designer has the right to indicate that he or she is the inventor or designer in the patent document.
The patentee has the right to display the patent logo on its patented product or the packaging of the product.
Article 18 If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent in China, he shall participate in the patent application in accordance with the agreement signed between his country of residence and China or the ***. international treaties, or in accordance with the principle of reciprocity and in accordance with this law.
Article 19 If foreigners, foreign enterprises or other foreign organizations without regular residence or business offices in China apply for patents and handle other patent matters in China, they shall entrust a patent agency established in accordance with the law to handle them.
Chinese entities or individuals that apply for patents and handle other patent matters domestically can entrust a patent agency established in accordance with the law to handle them.
Patent agencies shall abide by laws and administrative regulations and handle patent applications or other patent matters as entrusted by the agent; except for the contents of the agent’s inventions and creations, except those where the patent application has been published or announced, Have a duty of confidentiality. The specific management measures for patent agencies shall be stipulated by the State Council.
Article 20 If any unit or individual applies for a patent in a foreign country for an invention or utility model completed in China, it must report it to the patent administration department of the State Council in advance for confidentiality review. The procedures and deadlines for confidentiality review shall be implemented in accordance with the regulations of the State Council.
Chinese entities or individuals may file international applications for patents in accordance with relevant international treaties to which the People’s Republic of China is a party. When an applicant files an international application for a patent, he or she shall comply with the provisions of the preceding paragraph.
The Patent Administration Department of the State Council handles international applications for patents in accordance with relevant international treaties to which the People's Republic of China is a party, this Law and relevant provisions of the State Council.
For inventions or utility models that violate the provisions of paragraph 1 of this article and apply for patents in foreign countries, if a patent is applied for in China, the patent right will not be granted.
Article 21 The Patent Administration Department of the State Council and its Patent Reexamination Committee shall handle patent-related applications and requests in accordance with the requirements of objectivity, fairness, accuracy and timeliness.
The patent administration department of the State Council shall publish patent information in a complete, accurate and timely manner and publish patent gazettes regularly.
Before a patent application is published or announced, the staff and relevant personnel of the Patent Administration Department of the State Council shall be responsible for keeping its contents confidential.
Chapter 2 Conditions for Granting Patent Rights
Article 22 Inventions and utility models for which patent rights are granted shall possess novelty, creativity and practicality.
Novelty means that the invention or utility model does not belong to the existing technology; no unit or individual has applied for the same invention or utility model to the patent administration department of the State Council before the application date, and It shall be recorded in patent application documents or published patent documents published after the filing date.
Creativity means that compared with the existing technology, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress.
Practiceability means that the invention or utility model can be manufactured or used and can produce positive effects.
The term "existing technology" as used in this Law refers to the technology that was known to the public at home and abroad before the filing date.
Article 23: The design for which patent rights are granted shall not be an existing design; and no unit or individual has submitted an application to the patent administration department of the State Council for the same design before the application date. and be recorded in patent documents published after the filing date.
The design for which patent rights are granted should be significantly different from existing designs or combinations of existing design features.
The design for which patent rights are granted shall not conflict with the legal rights that others have acquired before the filing date.
The term "existing designs" as used in this Law refers to designs that are known to the public at home and abroad before the date of application.
Article 24 If an invention-creation for which a patent is applied for falls under any of the following circumstances within six months before the filing date, the novelty will not be lost:
(1) In China Exhibited for the first time at an international exhibition sponsored or recognized by the government;
(2) Published for the first time at a prescribed academic conference or technical conference;
(3) Others have not The content is disclosed with the consent of the applicant.
Article 25 No patent rights shall be granted for the following items:
(1) Scientific discoveries;
(2) Rules and regulations of intellectual activities Methods;
(3) Diagnosis and treatment methods of diseases;
(4) Animal and plant varieties;
(5) Obtained by nuclear transformation method Substance;
(6) Designs made on the patterns, colors, or a combination of the two on graphic prints that serve primarily as identification functions.
Patent rights may be granted in accordance with the provisions of this Law for the production methods of the products listed in item (4) of the preceding paragraph.
Chapter 3 Patent Application
Article 26 When applying for an invention or utility model patent, a request, description, abstract, claims and other documents shall be submitted.
The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters.
The description shall provide a clear and complete description of the invention or utility model, which shall be subject to the ability of a skilled person in the relevant technical field to realize it; when necessary, there shall be accompanying drawings. The abstract should briefly describe the technical key points of the invention or utility model.
The claims should be based on the description and clearly and briefly define the scope of patent protection requested.
For inventions and creations that rely on genetic resources, the applicant shall state the direct source and original source of the genetic resource in the patent application document; if the applicant cannot explain the original source, the applicant shall state the reasons.
Article 27 When applying for a design patent, a request, pictures or photos of the design, a brief description of the design and other documents shall be submitted.
The relevant pictures or photos submitted by the applicant should clearly show the design of the product requiring patent protection.
Article 28 The date when the patent administration department of the State Council receives the patent application documents is the filing date. If the application documents are mailed, the postmark date shall be the date of application.
Article 29 Within twelve months from the date the applicant first files a patent application for an invention or utility model in a foreign country, or from the date a design first files a patent application in a foreign country, Within six months of that date, another patent application was filed in China on the same subject matter.
Priority can be enjoyed in accordance with the agreement signed between the foreign country and China or the international treaty to which the foreign country is a party, or in accordance with the principle of mutual recognition of priority.
If the applicant files another patent application for the same subject with the Patent Administration Department of the State Council within twelve months from the date of first filing a patent application for an invention or utility model in China, the applicant may enjoy priority.
Article 30 If the applicant claims priority, he shall submit a written statement when applying and submit a copy of the first patent application document within three months; if the applicant fails to submit a written statement or If a copy of the patent application document is not submitted within the time limit, it will be deemed that the right of priority has not been claimed.
Article 31 An application for a patent for an invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to one general inventive concept can be filed as one application.
A design patent application shall be limited to one design. Two or more similar designs for the same product, or two or more designs for products of the same category that are sold or used in sets, can be submitted as one application.
Article 32 The applicant may withdraw his patent application at any time before the patent right is granted.
Article 33: Applicants may modify their patent application documents. However, modifications to invention and utility model patent application documents shall not exceed the scope recorded in the original description and claims. Modifications to patent application documents shall not exceed the scope of the original images or photos.
Chapter 4 Review and Approval of Patent Applications
Article 34 After receiving an invention patent application, the patent administration department of the State Council shall, upon preliminary examination, deem that it meets the requirements of this Law. The application will be announced after eighteen months from the date of application. The patent administration department of the State Council may publish the application as early as possible upon the applicant's request.
Article 35 Within three years from the date of application for an invention patent, the patent administration department of the State Council may conduct a substantive examination of the application based on the request made by the applicant at any time; the applicant fails to make the request within the time limit without justifiable reasons. If the application is subject to substantive examination, the application will be deemed to have been withdrawn.
When the patent administration department of the State Council deems it necessary, it may conduct a substantive examination of an invention patent application on its own.
Article 36 When an applicant for an invention patent requests substantive examination, he shall submit reference materials related to his invention before the filing date.
If an application for an invention patent has been filed in a foreign country, the patent administration department of the State Council may require the applicant to submit within a specified time limit the information retrieved by that country for the purpose of examining the application or the information on the examination results; if the application is overdue without justifiable reasons, If not submitted, the application will be deemed withdrawn.
Article 37 If, after conducting a substantive examination of an invention patent application, the patent administration department of the State Council deems that it does not comply with the provisions of this Law, it shall notify the applicant and require him to state his opinions within a specified time limit, or to The application shall be revised; if there is no reply within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
Article 38 If the patent administration department under the State Council still considers that the application for an invention patent does not comply with the provisions of this Law after the applicant has stated its opinions or made modifications, it shall be rejected.
Article 39: If no reason for rejection of an invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention patent right, issue an invention patent certificate, and register and announce it at the same time. The invention patent right shall take effect from the date of announcement.
Article 40: If no reason for rejection is found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant the utility model patent right or the design patent right and issue the corresponding The patent certificate shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
Article 41 The patent administration department of the State Council shall establish a patent reexamination committee. If a patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject the application, he may request a reexamination to the Patent Reexamination Board within three months from the date of receipt of the notice. After review, the Patent Reexamination Board will make a decision and notify the patent applicant.
If a patent applicant is dissatisfied with the reexamination decision of the Patent Reexamination Board, he may file a lawsuit with the People's Court within three months from the date of receipt of the notice.
Chapter 5 Term, Termination and Invalidity of Patent Rights
Article 42 The term of invention patent rights is twenty years. Utility model patent rights and design patent rights are limited to 20 years. The period is ten years, calculated from the date of application.
Article 43 The patentee shall pay annual fees starting from the year when the patent right is granted.
Article 44 If any of the following circumstances occurs, the patent right shall be terminated before the expiration of the term:
(1) Failure to pay annual fees in accordance with regulations;
(2) The patentee gives up its patent rights in a written statement.
If the patent right is terminated before the expiration of the term, it shall be registered and announced by the patent administration department of the State Council.
Article 45 From the date when the Patent Administration Department of the State Council announces the grant of a patent right, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Reexamination Board to declare the grant of the patent right. The patent is invalid.
Article 46 The Patent Reexamination Board shall promptly examine and make a decision on a request to declare the patent right invalid, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
If you are dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right, you may file a lawsuit with the People's Court within three months from the date of receipt of the notice. The people's court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.
Article 47 A patent right declared invalid shall be deemed to have ceased to exist from the beginning.
The decision to declare the patent right invalid, the judgment and mediation letter on patent infringement made and executed by the People's Court before the declaration of the patent right invalid, the patent infringement dispute settlement decision that has been executed or enforced, and the decision on patent infringement dispute that has been executed The executed patent license contract and patent rights transfer contract do not have retroactive effect. However, compensation should be provided for losses caused to others due to the bad faith of the patentee.
If patent infringement compensation, patent royalties, and patent rights transfer fees are not returned in accordance with the provisions of the preceding paragraph, which obviously violates the principle of fairness, all or part of the compensation shall be returned.
Chapter 6 Compulsory License for Patent Exploitation
Article 48 Under any of the following circumstances, the patent administration department of the State Council may, based on the application of an entity or individual that meets the conditions for exploitation, Granting a compulsory license to implement an invention patent or utility model patent:
(1) The patentee shall have completed three years from the date when the patent right was granted and four years from the date of filing the patent application, and no Failure to implement or fully implement the patent for legitimate reasons;
(2) The patentee’s behavior in exercising the patent right is determined to be a monopolistic behavior in accordance with the law, in order to eliminate or reduce the adverse impact of the behavior on competition. .
Article 49 In the event of a national emergency or extraordinary situation, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to exploit an invention patent or utility model patent.
Article 50: For public health purposes, the patent administrative department of the State Council may authorize the manufacture and export of medicines that have obtained patent rights to countries that comply with the requirements of the People's Republic of China and relevant international organizations of which the country is a party. Compulsory licenses for countries or regions stipulated in treaties.
Article 51 A patented invention or utility model is a major technological advancement of significant economic significance compared with a previously patented invention or utility model, and its implementation depends on the previous invention. For the implementation of a previous invention or utility model, the Patent Administration Department of the State Council may grant a compulsory license for the implementation of the previous invention or utility model based on the application of the latter patentee.
In the case where a compulsory license for implementation is granted in accordance with the provisions of the preceding paragraph, the patent administration department of the State Council may also grant a compulsory license for the implementation of the subsequent invention or utility model based on the application of the former patentee.
Article 52 If the invention-creation involved in the compulsory license is semiconductor technology, its implementation shall be limited to the purpose of public interest and the circumstances specified in Article 48 (2) of this Law.
Article 53 Except for compulsory licenses granted in accordance with Article 48 (2) and Article 50 of this Law, compulsory licenses shall be implemented mainly for the purpose of supplying the domestic market.
Article 54 An entity or individual applying for a compulsory license in accordance with Article 48 (1) and Article 51 of this Law shall provide evidence to prove that the request is under reasonable conditions. The patentee granted permission to exploit the patent but failed to obtain the permission within a reasonable time.
Article 55 When the patent administration department of the State Council makes a decision to grant a compulsory license, the patentee shall be notified in a timely manner, and shall be registered and announced.
The decision to grant a compulsory license shall specify the scope and time of implementation based on the reasons for the compulsory license. When the reasons for compulsory licensing are eliminated and no longer occur, the patent administration department of the State Council shall make a decision to terminate the compulsory license based on the request of the patentee and after review.
Article 56 A unit or individual that obtains a compulsory license for implementation does not enjoy the exclusive right to implement it and has no right to allow others to implement it.
Article 57 An entity or individual that obtains a compulsory license shall pay reasonable royalties to the patentee, or handle royalties in accordance with the provisions of relevant international treaties to which the People's Republic of China is a party. question. If royalties are paid, the amount shall be negotiated by both parties; if the two parties cannot reach an agreement, the patent administration department of the State Council shall make a ruling.
Article 58 If the patentee is dissatisfied with the decision of the Patent Administration Department of the State Council on the implementation of compulsory license, the patentee and the unit or individual who obtained the compulsory license shall appeal to the Patent Administration Department of the State Council on the implementation of compulsory license. If you are dissatisfied with the ruling on the use fee, you may file a lawsuit with the People's Court within three months from the date of receipt of the notice.
Chapter 7 Protection of Patent Rights
Article 59 The scope of protection of patent rights for inventions or utility models shall be based on the content of the claims. The description and drawings may be used to interpret the content of the claims.
The scope of protection of a design patent right is based on the design of the product shown in the picture or photo. A brief description can be used to explain the design of the product shown in the picture or photo.
Article 60: Exploiting the patent without the permission of the patentee shall infringe upon the patent right and cause disputes, which shall be settled through negotiation by the parties; if the parties are unwilling to negotiate or the negotiation fails, the patentee or interested parties shall The relevant party may file a lawsuit in the People's Court or request the patent administration department to handle the matter.
If the patent management department determines that the infringement is established, it may order the infringer to immediately stop the infringement. If the party is dissatisfied, it may, within fifteen days from the date of receipt of the handling notice, comply with the provisions of the People's Republic of China *** and the Administrative Litigation Law of the People's Republic of China to file a lawsuit in the People's Court; if the infringer does not file a lawsuit or stop the infringement upon expiration of the time limit, the department managing patent affairs may apply to the People's Court for compulsory enforcement.
At the request of the parties, the patent management department that handles the matter may mediate the amount of compensation for infringement of patent rights; if mediation fails, the parties may mediate the amount of compensation in accordance with the Civil Procedure Law of the People's Republic of China and the People's Republic of China. File a lawsuit with the People's Court.
Article 61 If a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that its product manufacturing method is different from the patented method.
If a patent infringement dispute involves a utility model patent or a design patent, the People's Court or the department administering patent affairs may require the patentee or interested party to issue a certificate issued by the Patent Administration Department of the State Council regarding the relevant utility model or design. The patent right evaluation report produced after retrieval, analysis and evaluation is used as evidence for hearing and handling patent infringement disputes.
Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or existing design, it does not constitute an infringement of patent rights.
Article 63: Anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections by the patent management department and make an announcement, confiscate the illegal income, and may impose a fine of not more than four times the illegal income; If there is no illegal income, a fine of not more than 200,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 64: When investigating and punishing suspected patent counterfeiting activities based on the evidence that has been obtained, the patent management department may question the relevant parties and investigate the circumstances related to the suspected illegal activities;
Conduct on-site inspections of places where parties are suspected of illegal activities; review and copy contracts, invoices, account books and other relevant materials related to suspected illegal activities;
Inspect products related to suspected illegal activities, and If there is evidence that the product is a counterfeit patented product, it can be seized or seized.
When the patent management department exercises its powers specified in the preceding paragraph in accordance with the law, the parties concerned shall provide assistance and cooperation and shall not refuse or obstruct it.
Article 65 The amount of compensation for infringement of patent rights shall be determined based on the actual losses suffered by the right holder due to the infringement; if the actual losses are difficult to determine, they may be determined based on the benefits obtained by the infringer due to the infringement.
If the loss of the right holder or the benefit obtained by the infringer is difficult to determine, it shall be reasonably determined with reference to the multiple of the patent license fee. The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement.
If it is difficult to determine the loss of the right holder, the benefits obtained by the infringer and the patent license fee, the people's court may determine to award 10,000 yuan based on factors such as the type of patent right, the nature and circumstances of the infringement, etc. Compensation of more than one million yuan and less than one million yuan.
Article 66: The patentee or interested party has evidence proving that others are committing or about to commit acts that infringe the patent right, and if not stopped in time, their legitimate rights and interests will be irreparably damaged. , you can apply to the People's Court for measures to order the cessation of relevant behavior before filing a lawsuit.
When applying, the applicant shall provide a guarantee; if the applicant fails to provide a guarantee, the application shall be rejected.
The People's Court shall make a ruling within 48 hours from the time of accepting the application; if there are special circumstances that require an extension, it may be extended for 48 hours. If a ruling orders the cessation of relevant conduct, it shall be implemented immediately. If the parties are dissatisfied with the ruling, they may apply for reconsideration once; the execution of the ruling will not be suspended during the review period.
If the applicant does not file a lawsuit within fifteen days from the date when the People's Court takes measures ordering the cessation of relevant conduct, the People's Court shall terminate the measures.
If there is an error in the application, the applicant shall compensate the respondent for the losses caused by stopping the relevant behavior.
Article 67: In order to stop patent infringement, if the evidence may be lost or difficult to obtain in the future, the patentee or interested party may apply to the People's Court for the preservation of evidence before filing a lawsuit.
When the people's court takes preservation measures, it may order the applicant to provide a guarantee; if the applicant fails to provide a guarantee, the application shall be rejected.
The people's court shall make a ruling within 48 hours from the time it accepts the application; if it decides to take preservation measures, it shall be implemented immediately.
If the applicant does not file a lawsuit within fifteen days from the date when the people's court takes preservation measures, the people's court shall terminate the measures.
Article 68 The statute of limitations for infringement of patent rights is two years, starting from the date when the patentee or interested party learns or should have learned of the infringement.
If appropriate royalties are not paid for using the invention between the publication of the invention patent application and the grant of the patent right, the statute of limitations for the patentee to demand payment of royalties is two years. The calculation shall be calculated from the date when the patentee knows that others are using the invention. However, if the patentee has known or should have known about it before the date of grant of patent right, the calculation shall be from the date of grant of patent right.
Article 69: Any of the following circumstances will not be regarded as infringement of patent rights:
(1) Patented products or products directly obtained according to patented methods shall be protected by the patent rights. Use, promise to sell, sell, or import the product after selling it to a person or an entity or individual with his permission;
(2) The same product has been manufactured, the same method has been used, or the product has been made before the patent application date. Make necessary preparations for manufacture and use, and continue to manufacture and use only within the original scope;
(3) Foreign means of transport that temporarily pass through China’s territorial land, territorial waters, and airspace shall be subject to the regulations of the country to which they belong. Agreements signed by China or international treaties to which China is a party, or in accordance with the principle of reciprocity, the use of relevant patents in the devices and equipment of the transportation vehicle for its own needs;
(4) Exclusively for scientific research Use relevant patents for experiments and experiments;
(5) Manufacture, use, or import of patented drugs or patented medical devices in order to provide information required for administrative review and approval, or manufacture, import of patented drugs or devices specifically for them Patented medical devices.
Article 70 If you use, offer for sale or sell for the purpose of production and business operations a patent-infringing product that is not known to be manufactured and sold without the permission of the patentee, and you can prove the legal source of the product, you will not be liable. Liability.
Article 71 Anyone who violates the provisions of Article 20 of this Law by applying for a patent in a foreign country or leaking state secrets shall be subject to administrative sanctions by his/her unit or the superior authority; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 72 Whoever infringes upon the inventor's or designer's right to apply for a patent for non-service inventions and creations and other rights and interests stipulated in this Law shall be subject to administrative sanctions by the unit where he/she belongs or the superior authority.
Article 73: Departments that manage patent work shall not participate in business activities such as recommending patented products to the public.
If a department managing patent work violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to make corrections and eliminate the impact, and any illegal income shall be confiscated; if the case is serious, the directly responsible person in charge and other persons shall be punished. Those directly responsible shall be given administrative sanctions in accordance with the law.
Article 74 If staff of state agencies and staff of other relevant state agencies engaged in patent management neglect their duties, abuse their powers, engage in malpractice for personal gain, which constitutes a crime, they shall be investigated for criminal responsibility in accordance with the law; it does not constitute a crime. , administrative sanctions will be imposed in accordance with the law.
Chapter 8 Supplementary Provisions
Article 75 To apply for a patent and handle other procedures with the patent administration department of the State Council, fees must be paid in accordance with regulations.
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