Latest Development of Patent Policies and System in China September 2010

1. Latest Development of Patent Policies and System in ChinaSeptember 2010

2. Emergence and Development of Patent System • Constitution and Implementation of the Patent Law • Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March  12,  1984. The law entered into the force on April 1,1985. • The First Amended Patent Law • Adopted at the 27th Session  of  the  Standing  Committee  of  the Seventh National People's Congress on September 4, 1992. The law entered into the force on January 1,1993.

3. Emergence and Development of Patent System • The Second Amended Patent Law • Adopted at the 17th Session  of  the  Standing  Committee  of  the Ninth National People's Congress on August 25, 2000. The law entered into the force in July 1,2001. • The Third Amended Patent Law • Adopted at the  Session  of  the  Standing  Committee on December 27, 2008. The law entered into the force on October 1, 2009. • Amended  by  the  Decision Regarding the Revision of the Rule Patent  Law  of  the  People's  Republic  of China by the State Council on January 9, 2010. The Rule entered into the force on February 1,2010. • Transitional Measures on Implementing the Amended Patent Law Promulgated by SIPO.

4. Emergence and Development of Patent System • Main Purpose of The Third Amended: • Co-owner established, encourage inventions-creations, promote the progress of the patent subject • Improve requirements for grant of patent right, patent quality, stability of the patent right • Balance advantage between public and patentee, avoid misuse of the patent • Perfect steps of judicature and administration , reinforce patent protected

5. Main Content of the Amended Patent Law • (1) Co-owner of a patent, right, incumbency • Co-owner （A15） • Bargain priority • A jointly-owned patent application or patent shall be exercised with the consent of all co-owners • In the absence of agreement, any co-owner may independently exploit the patent or license another party to exploit the patent through non-exclusive license • Any fee for the exploitation obtained from licensing others to exploit the patent shall be distributed among the co-owners

6. Main Content of the Amended Patent Law • (2) Requirements for grant of patent right • Novelty(A22) • Which has been disclosed in publications in China or abroad, or has been publicly used or made known to the public by any other means • Conflicting application by any entity or individual • Prior art • Protect of the genetic resources, indicate the direct and original source (A5,A26) • No patent right shall be granted for any invention-creation where acquisition or use of the genetic resources, on which the development of the invention-creation relies, is not consistent with the provisions of the laws or administrative regulations • The applicant shall indicate the direct and original source of the genetic resources

7. Main Content of the Amended Patent Law • (3)Perfect design • Confine object, advance application • Designs of two-dimensional printing goods, made of the pattern, the color or the combination of the two, which serve mainly as indicators, no patent right shall be granted (A25) • Improve qualification(A23) • Novelty, conflicting application • Prior design • “inventiveness”, Any design for which patent right may be granted shall significantly differ from prior design or combination of prior design features

8. Main Content of the Amended Patent Law • Two or more similar designs for the same product or more designs which are incorporated in products belonging to the same class and sold or used in sets may be filed as one application(A31) • A brief explanation of the design shall be submitted(A27) • The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims (A59) • The description and the appended drawings may be used to interpret the content of the claims • An evaluation report of patent(A61)

9. Main Content of the Amended Patent Law • (4)Safeguard public rights, prevent abuse of patent rights • Perfect compulsory license • A compulsory license allowed according to applications (A48) • Where the exercising of the patent right by the patentee is legally determined as an act of monopoly, for the purposes of eliminating or reducing the adverse effects of the act on competition (A48) • Patentee dose not exploit or dose not sufficiently exploit the patent without any justified reason • Public health and pharmaceutical product, a compulsory license allowed—relevant resolutions of Doha Declaration (A50)

10. Main Content of the Amended Patent Law • Patent medicine or the patent medical apparatus should not be deemed as infringement of patent right(A69) • make, use or import a patent medicine or the patent medical apparatus for the use of administrative approval • Added defense right of the existing technology(A62) • In a patent infringement dispute, where the alleged infringer has evidence to prove that the technology or design exploited by it or him forms part of prior art or is prior design, such exploitation does not constitute infringement of patent right

11. Main Content of the Amended Patent Law • (5)Execute the law, protect IPR • The amount of compensation for the damage caused by the infringement(A65) • assess on the basis of the actual losses • reasonable expenses of the right holder incurred for stopping the infringing act • Provide a security for the petition(A67) • the patentee or the interested party • make a ruling within 48 hours • the petitioner fails to institute legal proceedings within 15 days after the people’s count adopted the preservation measures

12. Main Content of the Amended Patent Law • Evidence obtained（A64） • query the parties, investigate the relevant circumstances • carry out an on-the-spot inspection of the site • review and reproduce the contracts, invoices, account books and other relevant materials • examine the products relevant to the suspected illegal act • seal up or withhold the products proved to be passing off the patented product • Increase design protected(A11) • offer to sell

13. Main Content of the Amended Patent Law • (6) Administration examine and approve, service • cancel agency designed by the State Count of the People’s Republic of China(A19) • any entity or individual intends to file an application for patent abroad, shouldn’t file first an application for patent with Patent Office(A20) • the patent administration department under the State Council and its Patent Reexamination Board shall handle any patent application and patent-related request according to law and in conformity with the requirements of being objective, fair, correct and timely (A21)

14. Thank You!