On December 27, 2008, at the sixth meeting of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China, the "Standing Committee of the National People's Congress on Amending the ***Decision on Patent Law of the People's Republic of China". Effective from October 1, 2009.
1. Special provisions on the utilization of genetic resources
The new patent law has provisions for inventions and creations related to genetic resources. Article 5 of the Patent Law stipulates that violations of Patent rights will not be granted for inventions and creations that obtain or utilize genetic resources in accordance with the provisions of laws and administrative regulations and rely on such genetic resources. Therefore, when applying for a patent, when the invention and creation relate to genetic resources, the patent applicant should prove the legality of the relevant genetic resources. In this regard, Article 26 of the new Patent Law has added a provision that for inventions and creations that rely on genetic resources, the applicant shall explain the direct source and original source of the genetic resource in the patent application document; the applicant cannot explain the original source of the genetic resource. source, the reasons should be stated.
2. Regulations on two applications for the same invention
The same invention patent can only obtain one invention patent right. However, in reality, some patent applicants are unable to determine their invention. Whether a creation is an invention or a utility model, both are often applied for at the same time. For this situation, the new Patent Law has added a special paragraph in Article 9, which stipulates that 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.
3. Increase the scope of the exercise of the patent right by offering to sell
In Articles 11 and 69 of the new Patent Law, it is stipulated that (1) after the design patent right is granted , without the permission of the patentee, no unit or individual is allowed to exploit its patent, that is, it is not allowed to manufacture, offer for sale, sell, or import its patented design products for production and business purposes. (2) After a patented product or a product directly obtained by a patented method is sold by the patentee or an entity or individual licensed by it, using, promising to sell, selling, or importing the product will not be deemed to infringe the patent right. Judging from Article 11, the new patent law has strengthened the protection of designs, making the scope of protection of design patent rights the same as inventions and utility models, including promise for sale. Judging from Article 69, the new patent law expands the scope of use of the product by the owner who purchased the patented product or the product directly obtained according to the patented method, allowing the owner to promise to sell and import the product he purchased.
IV. Form of Conclusion of Patent License Contract
Article 12 of the New Patent Law stipulates that any unit or individual that exploits another person’s patent shall enter into an exploitation license contract with the patentee. 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. Comparing it with the original patent law, we can find that the new patent law has deleted the word "written", so that the form of entering into a licensing contract is no longer limited to a written contract.
5. Restrictions on the promotion of invention patents
In Article 14 of the new Patent Law, only invention patents of state-owned enterprises and institutions are not harmful to national interests or public interests. If it is of great significance, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government may, upon approval by the State Council, decide to promote the application within the approved scope and allow designated units to implement it. The implementing unit shall pay the patentee for use in accordance with national regulations. fee. In the original patent law, "Invention patents of Chinese collective ownership units and individuals, which are of great significance to national interests or public interests and need to be promoted and applied, shall be handled with reference to the provisions of the preceding paragraph." It can be seen from this that the new patent law has added Strengthen the protection of invention patents of collective ownership units and individuals, and prevent the use of public power to infringe inventions of collective ownership units and individuals protected by the patent law on the pretext that they are of great significance to national interests or public interests.
6. Clarify that someone has exercised the patent right
In Article 15 of the new Patent Law, it is clearly stipulated that the right to apply for a patent or the exercise of the patent right by someone is Regarding the exercise of rights, (1) if there is an agreement, the agreement shall prevail; (2) if there is no agreement, one person may independently implement the patent or license others to implement the patent in the form of a general license; if the patent is authorized to be implemented by others, the fee shall be charged The royalties should be distributed among the owners; (3) In other cases, the exercise of the owner's patent application right or patent rights must obtain the consent of all owners.
7. Lowering the threshold for foreign patent applicants to apply for patents in my country
Article 19 of the Patent Law has been newly revised to stipulate that foreigners who do not have a habitual residence or business office in China, Foreign enterprises or other foreign organizations that apply for patents and handle other patent matters in China must entrust a patent agency established in accordance with the law to handle them. The original patent laws stipulated that foreigners, foreign enterprises or other foreign organizations without regular residence or business offices in China should entrust a patent agency designated by the Patent Administration Department of the State Council to handle matters when applying for patents and handling other patent matters in China. In contrast, the scope of patent agencies that can be entrusted has been expanded, providing convenience for foreign patent applicants to apply for patents in my country.
8. Increase the protection of domestic utility models
The new patent law has increased the protection of utility models. Article 20 stipulates that any unit or individual will If an invention or utility model completed in China is applied for patent in a foreign country, it must be reported to the patent administration department of the State Council in advance for confidentiality review. At the same time, it is stipulated that for inventions or utility models that violate the provisions of paragraph 1 of this article and apply for patents in foreign countries, if they apply for patents in China, the patent rights will not be granted. Compared with the original patent law, inventions and utility models are both included in the scope of examination, and the content of examination by the patent administrative department is clarified. At the same time, the protection of domestic inventions and utility models has been strengthened to prevent the loss of advanced technology abroad. The added paragraph reflects the fundamental purpose of formulating the patent law, which is to promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development.
9. Announcement Obligations of the Patent Administration Department
Article 21 of the New Patent Law has added a paragraph to the original article, stipulating that the patent administration department of the State Council shall publish complete, accurate and timely Patent information and regular publication of patent gazettes. This provision clarifies the obligations of the patent administration department in the release of patent information, and provides a basis and guidance for further standardization of the release of patent information by the patent administration department in the future.
10. Conditions for granting patent rights
1. Definition of novelty and creativity. The new Patent Law has made certain changes to the definitions of novelty and inventiveness, stipulating that (1) Novelty means that the invention or utility model does not belong to the existing technology; and no unit or individual has filed a patent for the same invention or utility model in the past. An application has been submitted to the Patent Administration Department of the State Council before the application date, and shall be recorded in the patent application documents or announced patent documents published after the application date. (2) 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.
The new article puts forward the concept of "existing technology". According to the definition in Article 21 of the new Patent Law, existing technology refers to technology that is known to the public at home and abroad before the filing date. Compared with the original patent law, the determination of novelty and inventive step is made more abstract, and the scope of free determination by the patent administrative department is increased.
2. The design review conditions are more stringent. Article 22 of the New Patent Law makes the conditions for design patents more specific and clearer, and also makes the review of design patent applications more stringent. (1) The design for which patent rights are granted shall not be an existing design.
That is to say, the design for which the patent right is granted should not be a design that was known to the public at home and abroad before the filing date; (2) No unit or individual has filed a complaint with the Patent Administration Department of the State Council about the same design before the filing date. application, and recorded in the patent documents announced after the application date; (3) The design for which the patent right is granted should be significantly different from the existing design or the combination of existing design features; (4) The appearance for which the patent right is granted The design must not conflict with the legal rights that others have acquired before the filing date.
3. Scope within which patent rights are not granted. Article 25 of the new Patent Law increases the scope of non-granted patent rights, and lists designs that mainly serve the purpose of marking the patterns, colors or combinations of two-dimensional printed matter as items that are not granted patent rights.
11. Application for design patent rights
1. Design application documents. The new patent law has made adjustments to the documents to be submitted when applying for a design. A brief description of the design is added to Article 27 as a document to be submitted when applying for a design. At the same time, there are provisions for the pictures or photos to be submitted, requiring the relevant pictures or photos submitted by the applicant to clearly show the design of the product for which patent protection is sought.
2. Application for similar design. The newly revised Patent Law adds provisions in Article 31, allowing applicants to submit two or more similar designs for the same product as one application.
12. Compulsory license for patent implementation
1. Applicant for compulsory license. Article 48 of the New Patent Law stipulates that the patent administration department of the State Council may grant a compulsory license to exploit an invention patent or utility model patent based on the application of an entity or individual that meets the conditions for implementation. Compared with the original patent law, the new law allows individuals to apply for compulsory licenses if they meet the conditions for implementation.
2. Application for compulsory license. The original Patent Law only stipulated that a unit with the conditions for implementation should request the invention or utility model patentee for permission to implement its patent under reasonable conditions, but failed to obtain such permission within a reasonable period of time. The new Patent Law makes specific provisions: (1) It has been three years since the patent right was granted, and it has been four years since the patent application was filed, and the patentee has failed to implement or fully implement the patent without justifiable reasons. ; (2) The patentee’s exercise of the patent right is deemed to be a monopoly behavior in accordance with the law, in order to eliminate or reduce the adverse impact of the behavior on competition.
3. Compulsory licensing of pharmaceutical patent rights. Article 50 of the new Patent Law makes special provisions for compulsory licensing of patented drugs. For public health purposes, the patent administration department of the State Council may grant a compulsory license for the manufacture and export of drugs that have obtained patent rights to countries or regions that comply with the provisions of relevant international treaties to which the People's Republic of China is a party.
4. Compulsory licensing of semiconductor technology. Article 52 of the New Patent Law makes special provisions for compulsory licensing of semiconductor technology. Only for the purpose of public interests and the circumstances specified in Paragraph 2 of Article 48 of the new law, that is, the behavior of the patentee exercising the patent right is legally recognized as a monopoly behavior, in order to eliminate or reduce the impact of this behavior on competition. A compulsory license can only be applied for if there is adverse impact.
13. Protection of patent rights
1. Punishment for counterfeit patents. Article 63 of the New Patent Law strengthens the economic penalties for counterfeiting. It stipulates that anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections and made public by the patent management department, and the illegal gains may be confiscated and may be punished for illegal acts. A fine of not more than four times the 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.
2. Empower management departments. Article 64 of the new Patent Law gives the patent management department the relevant power to investigate counterfeit patents.
It is stipulated that when the patent management department investigates and handles suspected patent counterfeiting based on the evidence that has been obtained, it can question the relevant parties and investigate the situation related to the suspected illegal acts; conduct on-site inspections of the places where the parties are suspected of illegal acts; review, copy and Contracts, invoices, account books and other relevant materials related to suspected illegal activities; inspect products related to suspected illegal activities, and products with evidence that they are counterfeit patents can be sealed or detained.
3. Amount of compensation. Article 65 of the new Patent Law stipulates in more detail the calculation method for the amount of compensation for patent infringement on the basis of the original law. (1) Determined based on the actual losses suffered by the right holder due to the infringement; (2) If the actual losses are difficult to determine, they can be determined based on the benefits gained by the infringer due to the infringement; (3) The losses suffered by the right holder or the benefits gained by the infringer If it is difficult to determine, it shall be reasonably determined by referring to the multiple of the patent license fee; (4) 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 the amount based on the type of patent right and the nature of the infringement. Depending on the nature, circumstances and other factors, it is determined that a compensation of not less than 10,000 yuan but not more than 1 million yuan will be awarded.
4. It is not considered as infringement of patent rights. Article 69 of the new Patent Law stipulates five situations that are not considered as infringement of patent rights: (1) Patented products or products directly obtained according to patented methods are sold by the patentee or units or individuals licensed by him or her. , use, promise to sell, sell, or import the product;
(2) The same product has been manufactured, the same method has been used, or the necessary preparations for manufacturing and use have been made before the patent application date, and only within the original scope continue to be manufactured and used within the country;
(3) Foreign transportation vehicles that temporarily pass through China’s territorial land, territorial waters, and airspace shall, in accordance with the agreement signed by the country to which they belong and China or the international treaty to which China is a party, Or, in accordance with the principle of reciprocity, use relevant patents in the devices and equipment of the transportation vehicle for its own needs;
(4) Use relevant patents exclusively for scientific research and experiments;
( 5) Manufacture, use, and import of patented drugs or patented medical devices in order to provide information required for administrative review and approval, or manufacture, import and manufacture of patented drugs or patented medical devices specifically for them. The fifth item is added by the new patent law.