China: Decision of October 17, 2020, of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China

June 1, 2021

China: The Decision of October 17, 2020, of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China entered into force on June 1, 2021.

The Decision introduces amendments to the Patent Law of the People's Republic of China, which include, inter alia, the following amendments:

(i) increasing patent infringement damages to deter infringement by introducing punitive damages, raising statutory damages, and shifting burden of production of evidence in relation to damages;

(ii) providing for supplemental term extension for pharmaceutical patents, either to compensate for drugs having lengthy approval process or for unreasonable delays caused by the China National Intellectual Property Administration (hereinafter "CNIPA") during patent examinations;

(iii) establishing a new pharmaceutical patent linkage system and an effective mechanism for early resolution of pharmaceutical patent disputes;

(iv) creating a patent open license system administered by CNIPA;

(v) strengthening and extension of the protection to 15 years for design patents;

(vi) encouraging employers to establish mechanisms that reward the inventor or designer of an employment invention-creation;

(vii) providing patent information and services to the public to increase the public's knowledge about existing services, as well as knowledge about the usefulness of technical information and about the importance of information concerning patents on the market;

(viii) enhancing administrative enforcement of patents that will increase the number of cases seeking administrative enforcement;

(ix) introducing new good faith requirements for both the application and exercise of patent rights;

(x) improving the rules on the issuance of patent evaluation reports for utility models and design patents which allows both parties (patentee and alleged infringer) and interested parties to produce the said reports to CNIPA in a patent infringement dispute;

(xi) excluding methods of nuclear transformation from patentable subject matter; and

(xii) aligning patent infringement litigation with the new civil procedure rules amended in 2017, relating to, inter alia, replacing the statute of limitation for filing patent litigation from 2 years to 3 years.