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Patent Law of the People's Republic of China (2008)

( Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984

Amended for the 1st time in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 27th Meeting on September 4, 1992

Amended for the 2nd time in accordance with the Decision of the Standing Committee of the Ninth National People's Congress on Amending the Patent Law of the People's Republic of China at its 17th Meeting on August 25, 2000

Amended for the 3rd time in accordance with the Decision of the Standing Committee of the Eleventh National People’s Congress on Amending the Patent Law of the People’s Republic of China at its 6th Meeting on December 27, 2008

The revised Law comes into force on Oct. 1, 2009 )

Compulsory License for Exploitation of Patent

Article 48.   Under any of the following circumstances, the patent administration department under the State Council may, upon the request of an entity or individual which is qualified to exploit the invention or utility model, grant a compulsory license to exploit the patent for invention or utility model:

(1) where the patentee, after the expiration of three years from the date of the grant of the patent and the expiration of four years from the date of filing, does not exploit or does not sufficiently exploit the patent without any justified reason;

(2) 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.

Article 49.   Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administration department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50.   For the purposes of public health, the patent administration department under the State Council may grant a compulsory license to manufacture a pharmaceutical product which has been granted patent right and export it to countries or regions specified in the relevant international treaties to which China is party.

Article 51.   Where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

Where, according to the preceding paragraph, a compulsory license is granted, the patent administration department under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 52.   Where the invention-creation involved in the compulsory license relates to the semi-conductor technology, the exploitation thereof shall be limited only for the purpose of public interest or under the condition as provided in Article 48 (2) of this Law.

Article 53.   Except for compulsory licenses granted in accordance with Article 48 (2) or Article 50 of this Law, the exploitation of any compulsory license shall be executed predominately for the supply of the domestic market.

Article 54.   Any entity or individual requesting, in accordance with the provisions of Article 48(1) or Article 51 of this Law, a compulsory license for exploitation shall furnish proof to show that it or he has made requests for authorization from the patentee to exploit its or his patent on reasonable terms and conditions, and such efforts have not been successful within a reasonable period of time.

Article 55.   The decision made by the patent administration department under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.

In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the patent administration department under the State Council may, after review upon the request of the patentee, terminate the compulsory license.

Article 56.   Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

Article 57.   The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, or deal with the issue of exploitation fee according to relevant provisions of the international treaties to which China is party. Where the exploitation fee is paid, the amount shall be negotiated by both parties. Where the parties fail to reach an agreement, the patent administration department under the State Council shall adjudicate.

Article 58.   Where the patentee is not satisfied with the decision of the patent administration department under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the patent administration department under the State Council regarding the fee payable for exploitation, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.