4.1.3 Legal basis to hear patent cases
China’s legal system is a civil-law system, as opposed to a common-law system, with only statutory law, not case law. Chinese courts adjudicate civil and administrative patent cases in accordance with laws such as the Patent Law, administrative regulations such as the Rules for the Implementation of the Patent Law, judicial interpretations and by reference to guiding cases.
According to Article 63 paragraph 3 of the Administrative Procedure Law,9 “the people’s courts shall refer to the regulations when hearing administrative cases.” Therefore, Chinese courts may refer to the Guidelines for Patent Examination formulated by the China National Intellectual Property Administration (CNIPA) when hearing administrative patent cases involving a reexamination or invalidation procedure.
Laws are enacted by the top legislative body of the State – namely the NPC and its Standing Committee – and promulgated by the Order of the President of the People’s Republic of China, signed by the President. Laws have higher authority compared to administrative regulations, local regulations and rules. In addition to the Patent Law, Chinese courts that hear patent cases are also governed by applicable substantive laws, including the Civil Code.10
The Civil Code, reviewed and passed on May 28, 2020, at the Third Session of the 13th NPC, is the first law to be named a “code” since the founding of the People’s Republic of China. The Civil Code has no separate section on intellectual property but has some special provisions on the same in Chapter V (“Civil-Law Rights”). Article 123 of the Civil Code stipulates the following:
The persons of the civil law enjoy intellectual property rights in accordance with the law.
Intellectual property rights are the exclusive rights enjoyed by the right holders in accordance with the law over the following subject matters:
- (1) works;
- (2) inventions, utility models, or designs;
- (3) trademarks;
- (4) geographical indications;
- (5) trade secrets;
- (6) layout designs of integrated circuits;
- (7) new plant varieties; and
- (8) other subject matters as provided by law.
Article 1185 of the Civil Code stipulates the following: “In case of an intentional infringement of another person’s intellectual property rights, where the circumstances are serious, the infringed party has the right to request for corresponding punitive damages.” The provisions of the Civil Code apply to co-ownership, contracts, security, succession, joint infringement, aiding and abetting infringement, civil liability and so on when they are related to patent rights.
In terms of procedural law, Chinese courts hear patent cases, enforce decisions and make decisions related to the preservation of evidence, property or acts in accordance with the provisions of the Civil Procedure Law,11 Administrative Procedure Law, Criminal Procedure Law12 and applicable judicial interpretations. On October 26, 2018, the Decision on the Litigation of Intellectual Property Cases was revised and adopted at the Sixth Session of the Standing Committee of the 13th NPC.13 According to the decision, the Supreme People’s Court shall hear cases on appeal over patent and other intellectual property rights involving professional technologies throughout the country.
According to Article 42 of the Legislation Law:14
The power to interpret a law shall be vested in the Standing Committee of the National People’s Congress.
Under any of the following circumstances, a law shall be interpreted by the Standing Committee of the National People’s Congress if:
- (1) the specific meaning of any provisions of a law requires further clarification; or
- (2) any new circumstances appearing after the issuance of a law require clarification of the basis for the application of the law.
The interpretation of law adopted by the Standing Committee of the NPC has the same effect as the laws enacted by it. The Standing Committee of the NPC has not made any legislative interpretation of the Patent Law.
220.127.116.11 Administrative regulations
Administrative regulations are drafted by relevant departments under the State Council or by the State Council’s legal affairs organ and are promulgated by the Decree of the State Council of the People’s Republic of China, signed by the Premier of the State Council. Administrative regulations in the field of patent law include the Rules for the Implementation of the Patent Law and the Regulations on Patent Commissioning.15
Alongside the amendments to the Patent Law, the Rules for the Implementation of the Patent Law have been amended several times accordingly. After the promulgation of the 1984 Patent Law, the State Council approved the Rules for the Implementation of the Patent Law – which was formulated by the Patent Office of China – on January 19, 1985, and it came into force together with the Patent Law on April 1, 1985. In 1992, the Standing Committee of the NPC made the first amendment to the Patent Law, and, on December 12 of the same year, the State Council approved the amended Rules for the Implementation of the Patent Law, which came into force together with the amended Patent Law on January 1, 1993. In 2000, the Standing Committee of the NPC made the second amendment to the Patent Law, and, on June 15, 2001, the State Council promulgated the new Rules for the Implementation of the Patent Law, which came into effect together with the second amended Patent Law on July 1, 2001. At the same time, the rules that were approved by the State Council for amendment in 1992 were repealed. The existing rules were amended in 2002 and 2010.
To be consistent with the fourth amendment to the Patent Law, the CNIPA worked on amendments to the Rules for the Implementation of the Patent Law and developed a draft accompanying explanatory notes, which were published in November 2020 for comment from all sectors of society. As the Rules for the Implementation of the Patent Law are still in the process of amendment, the CNIPA formulated the Interim Measures for the Amended Patent Law to ensure the appropriate implementation of the amended Patent Law.16
18.104.22.168 Judicial interpretations
Article 18 paragraph 1 of the Law on the Organization of the People’s Courts17 stipulates the following: “The Supreme People’s Court may interpret the issues concerning the application of law in trial.” According to Article 104 of the Legislation Law:18 “The interpretation of the application of specific law in the judicial or procuratorial work made by the Supreme People’s Court or the Supreme People’s Procuratorate shall be aimed at the specific legal provisions and in line with the legislative purpose, principle, and original intention in respect of the legislation.”
According to the Provisions on Judicial Interpretation Work,19 the judicial interpretation issued by the Supreme People’s Court shall have legal force. The judicial interpretation shall be given in accordance with law and legislative spirit and depend on the actual needs of trial. Judicial interpretations may be made in any of five forms: “interpretations,” “provisions,” “rules,” “replies” and “decisions.” Judicial interpretations on the specific application of a certain law in the trial work or the application of law in the trials of cases of a certain category or of certain kinds of problems are made as “interpretations.” Judicial interpretations on the formulation of the norms or opinions that are necessary for the trial work based on the legislative spirit are made as “provisions.” Judicial interpretations on the regulation of trial and enforcement of decisions are made as “rules.” Judicial interpretations on the requests for instructions on the specific application of law in the trial work by the higher people’s courts or the Military Court of the People’s Liberation Army are made as “replies.” The amendment or abolishment of judicial interpretations is made as a “decision.”
Draft judicial interpretations made by the Supreme People’s Court are adopted after discussion by the Adjudication Committee, issued by the president or executive vice-president of the Supreme People’s Court, published in the form of a public announcement by the Supreme People’s Court and submitted to the Standing Committee of the NPC for the record within 30 days from the date of publication.
In the field of patent law, there are primarily the following judicial interpretations:
judicial interpretations related to jurisdiction over cases, including:
judicial interpretations related to procedure and evidence, including:
judicial interpretations related to substantial issues of the Patent Law, including:
- Provisions on the Trial of Patent Disputes;26
- Interpretation of Patent Infringement Dispute Cases;27
- Interpretation (II) of Patent Infringement Dispute Cases;28
- Provisions on Patent Grant and Confirmation;29
- Provisions on the Patent Rights of Drugs;30
- Interpretation of Punitive Damages in Intellectual Property Civil Cases;31 and
- Reply on Compensation for a Plaintiff’s Abuse of Rights.32
22.214.171.124 Departmental rules
The Guidelines for Patent Examination are department rules formulated by the CNIPA. It details and supplements the provisions of the Patent Law and the Rules for the Implementation of the Patent Law. It also serves as the basis and standard for the legal administration of the CNIPA to refer to and follow in enforcing the relevant laws and regulations. The guidelines were amended in accordance with the 2008 Patent Law, the Rules for the Implementation of the Patent Law (2010 Revision) and based on actual requirements. The Guidelines for Patent Examination first came into effect on February 1, 2010, and have been amended six times since.
The first amendment came into effect on October 15, 2013, and primarily concerned the preliminary examination procedure for utility model and design patent applications. The second amendment came into effect on May 1, 2014, and primarily concerned the scope for the granting of design patents for graphical user interfaces. The third amendment came into effect on April 1, 2017, and primarily concerned the conditions for granting patents related to business models, the examination of patent applications for inventions involving computer programs, the supplemental submission of experimental data, and the examination of requests for the invalidation of a patent right. The fourth amendment came into effect on November 1, 2019, and primarily concerned the preliminary examination and substantive examination of patent applications for inventions, drafting requirements for graphical user interface design patents, and examination standards for patents related to human embryonic stem cells. The fifth amendment came into effect on February 1, 2020, and primarily concerned the examination of patent applications for inventions related to artificial intelligence, “internet+,” big data and blockchain, and the examination of patent applications for inventions having algorithmic features or business rules and method features. The sixth amendment came into effect on January 15, 2021, and primarily concerned the examination of invention patent applications in the field of chemistry, including the supplemental submission of experimental data, rules for determining the novelty and creativity of compounds, and the examination of monoclonal antibodies.
126.96.36.199 International treaties
International treaties are written agreements on mutual rights and obligations concluded between subjects of international law. To have a legal basis in China, such international treaties must have entered into force in China. If an international treaty concluded by China – or to which China is a party and has come into force in China – has different provisions compared to Chinese laws on the same matter, the provisions of the international treaty take precedence, except for such provisions for which China has declared its reservations. China has adopted a model of transformative application with respect to the TRIPS Agreement.
In terms of patent law, multilateral international treaties to which China is a party and that have come into force in China include:
- the Convention establishing the World Intellectual Property Organization (effective in China from June 3, 1980),33 administered by WIPO;
- the Paris Convention for the Protection of Industrial Property (effective in China from March 19, 1985);34
- the Patent Cooperation Treaty (effective in China from January 1, 1994);35
- the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (effective in China from July 1, 1995);36
- the Locarno Agreement establishing an International Classification for Industrial Designs (effective in China from September 19, 1996);37
- the Strasbourg Agreement concerning the International Patent Classification (effective in China from June 19, 1997);38 and
- the TRIPS Agreement (effective in China from December 11, 2001), administered by the World Trade Organization.
The Regional Comprehensive Economic Partnership was officially signed on November 15, 2020, by 15 Asia-Pacific countries (including China, Japan, Republic of Korea, Australia and New Zealand) and has been ratified by six Association of South-East Asian Nations countries (including Brunei Darussalam) and four non-Association countries (China, Japan, New Zealand and Australia). The Regional Comprehensive Economic Partnership entered into force on January 1, 2022. The agreement has a special chapter on intellectual property, covering copyright, trademarks, geographical indications, patents, designs, genetic resources, traditional knowledge and folklore, anti-unfair competition, intellectual property enforcement, cooperation, transparency, technical assistance and other fields.
Bilateral international treaties regarding patent law concluded by China and that have come into force in China include:
- the Memorandum of Understanding between the Government of China and the Government of the United States of America on the Protection of Intellectual Property (effective January 1, 1993);39
- the Economic and Trade Agreement between the Government of the United States of America and the Government of the People’s Republic of China (effective February 14, 2020; a first-stage economic and trade agreement between the US and China);40
- the New Zealand–China Free Trade Agreement (effective October 1, 2008);41
- the China–Peru Free Trade Agreement (effective March 1, 2010);42
- the China–Costa Rica Free Trade Agreement (effective August 1, 2011);43
- the China–Australia Free Trade Agreement (effective December 20, 2015);44
- the China–Republic of Korea Free Trade Agreement (effective December 20, 2015);45
- the China–Georgia Free Trade Agreement (effective from January 1, 2018);46 and
- the China–Mauritius Free Trade Agreement (effective from January 1, 2021).47