An International Guide to
Patent Case Management for Judges

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4.1.1 Formulation and evolution of China’s Patent Law Promulgation of the Patent Law

The Temporary Regulations for the Protection of Invention Right and Patent Right and its detailed implementation rules, which were enacted in 1950, were the first regulations on patent rights since the founding of the People’s Republic of China.

On March 12, 1984, the Standing Committee of the Sixth National People’s Congress (NPC) reviewed and adopted the 1984 Patent Law.1 The 1984 Patent Law had 69 articles. The then Director General of the World Intellectual Property Organization (WIPO), Mr. Árpád Bogsch, commented that the Chinese language was wonderful, as the three types of patents (invention, utility model, and design) were clearly stated in only 60-odd articles.2 Four amendments to the Patent Law

The first amendment to the Patent Law,3 in 1992, included:

  • deleting the provision in the 1984 Patent Law that no patent right shall be granted for drugs, foodstuffs, beverages and condiments;
  • additionally granting a right of importation to the patentee;
  • extending the protection of method patents to products directly obtained by those methods;
  • increasing the term of protection of invention patents from 15 years to 20 years and increasing the term of protection of utility model patent and design patent rights from 5 years with a 3-year renewal to 10 years;
  • abolishing the obligation of the patentee to implement patents in China and amending the conditions of compulsory licensing; and
  • improving the patent application and approval procedures, adding domestic priority and replacing the pre-grant opposition procedure with a post-grant revocation procedure.

The second amendment to the Patent Law,4 in 2000, included:

  • clarifying that the legislative purpose of the Patent Law included “promoting scientific and technological progress and innovation”;
  • improving the system of invention and creation ownership and allowing the employer of an inventor or designer to make an agreement on the ownership of a patent to inventions and creations made with the material and technical conditions of the employer;
  • abolishing the requirement that state-owned units hold the patent rights to enable the state-owned units to enjoy the full right to dispose of the patent rights acquired by them as other economic entities;
  • giving a patentee the right to offer to sell;
  • consolidating the revocation and the invalidation procedures into a single invalidation procedure;
  • abolishing the power of the Patent Reexamination Board to make final decisions on utility model patents and design patents and stipulating that parties have the right to appeal to a people’s court with respect to the reexamination decision or invalidation decision made by the Patent Reexamination Board on utility model patents and design patents;
  • defining the obligations to be performed by China as a contracting state of the Patent Cooperation Treaty;
  • providing for a search report system for utility model patents; and
  • strengthening the protection of patent rights by introducing pre-litigation temporary injunction and property preservation measures and stipulating that the amount of compensation for infringement may be determined by reference to a reasonable multiple of the patent license fee.

In June 2008, the Outline of the National Intellectual Property Strategy was officially promulgated.5 A third amendment to the Patent Law was consequently necessary for the implementation of the National Intellectual Property Strategy, for the development of an innovative country, for adapting to the international development trend of intellectual property rights and for China to adjust its economic structure, transform its development model and achieve sustainable scientific development. The third amendment to the Patent Law,6 in 2008, included:

  • the explicit inclusion of “enhancing innovation capability” in the legislative purpose;
  • setting higher requirements for granting design patents by replacing the standard of “relative novelty” with “absolute novelty”;
  • making further stipulations regarding the conditions for granting design patents;
  • extending the scope of “conflicting applications” that undermine novelty to include the applicant’s own prior applications;
  • stipulating that only one patent right can be granted for the same invention and creation and defining the conditions for transfer between invention patents and utility model patents;
  • stipulating that offering to sell constitutes an infringement of design patents;
  • collectively referring to the acts of “counterfeiting another person’s patent” and “passes off any unpatented product or method as a patented one” as “counterfeiting a patent” and setting higher administrative penalty standards;
  • clarifying that the amount of compensation also includes the reasonable expenses paid by the right holder to stop infringements;
  • imposing pre-litigation evidence preservation measures and delegating the administrative power to the patent administration department of the State Council to investigate and handle patent counterfeiting;
  • amending the provisions on compulsory licensing for patents in accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement);7
  • stipulating exceptions to the administrative approval of patents for pharmaceuticals and medical devices; and
  • introducing provisions on genetic resources and traditional knowledge.

The fourth amendment to the Patent Law,8 in 2020, included:

  • increasing the amount of statutory compensation and introducing a punitive damage system;
  • improving the rules of evidence relating to compensation for infringement and reducing the burden of proof on the right holder;
  • improving relevant provisions on patent administrative enforcement, imposing more severe penalties on patent counterfeiting and raising the amount of penalty;
  • stipulating a new system for drug patent term extension and a mechanism for early settlement of drug patent disputes;
  • extending the term of a design patent to 15 years, providing protection for partial designs and stipulating the domestic priority system for design patent applications;
  • further improving the provisions related to service invention-creation, providing that the State encourages the entities to which the patent rights are granted to implement property right incentives and to share innovation returns reasonably with inventors or designers by means of equity, options, dividends and so on;
  • stipulating an open licensing system for patents;
  • improving the provisions on the grace period of novelty and supplementing a circumstance where the first disclosure is made for the purpose of public interest in case of national emergency or extraordinary circumstances;
  • improving the system of patent evaluation reporting and expanding the scope of subjects entitled to apply for a patent evaluation report; and
  • optimizing the provisions on the procedure for claiming priority and extending the time limit for submitting copies of priority documents.