You are here

Patent Law of the People's Republic of China (2020 Amendment)[Effective]

Issuing authority:

Standing Committee of the National People's Congress,Standing Committee of the National People's Congress

Document Number:

Order No. 55 of the President of the People's Republic of China

Date issued:

10-17-2020

Effective date:

06-01-2021

Level of Authority:

Laws

Area of Law:

Patent

Patent Law of the People's Republic of China
(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time by the Decision on Amending the Patent Law of the People's Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992; amended for the second time by the Decision on Amending the Patent Law of the People's Republic of China, adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on August 25, 2000; amended for the third time by the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China adopted at the 6th Session of Standing Committee of the 11th National People's Congress of the People's Republic of China on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress to Amend the Patent Law of the People's Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on October 17, 2020) 

Article 42 The term of a patent for an invention shall be 20 years, the term of a patent for a utility model shall be ten years, and the term of a patent for a design shall be 15 years, all commencing from the date of filing of application.
Where a patent for an invention is granted four years from the date of filing of application and three years from the date of filing of request for substantial examination, the patent administrative department of the State Council shall, at the request of the patentee, provide patent term extension for unreasonable delay in the patenting process for the invention, except for unreasonable delay caused by the applicant.
For the purpose of making up the time required for the assessment and approval of the marketing of a new drug, the patent administrative department of the State Council may, at the request of the patentee, provide patent term extension for an invention patent relating to the new drug approved for marketing in China. The extension may not exceed five years, and the total effective term of the patent after the new drug is approved for marketing shall not exceed 14 years.

Article 43 A patentee shall pay an annual fee beginning with the year in which the patent is granted.

Article 44 In any of the following cases, the patent shall be terminated before the expiration of its duration:

(1) an annual fee is not paid under relevant provisions;

(2) the patentee waives his or its patent by a written declaration.
Any patent which is terminated prior to the expiration of its duration shall be registered and announced by the patent administrative department of the State Council.

Article 45 Where, as of the announcement of the granting of the patent by the patent administrative department of the State Council, any entity or individual considers that the granting of the said patent does not conform to the relevant provisions of this Law, it or he may request the patent administrative department of the State Council to invalidate the patent right.

Article 46 The patent administrative department of the State Council shall timely examine the request for invalidating a patent, make a decision and notify the petitioner and the patentee. The decision on invalidating the patent shall be registered and announced by the patent administrative department of the State Council.
Where any party is dissatisfied with the decision of the patent administrative department of the State Council on declaring a patent invalid or maintaining a patent, such party may, within three months as of receipt of the notification, bring a lawsuit to the people's court. The people's court shall notify the opposite party in the procedures for requesting invalidation that it or he should participate in the litigation as a third party.

Article 47 Any patent right that has been invalidated shall be deemed to be non-existent from the very beginning.
The decision on invalidating a patent shall, prior to the invalidation of the patent, have no retroactive effect on any judgment or mediation document on patent infringement which has been made and enforced by the people's court, on any implemented or compulsorily enforced decision concerning the settlement of a dispute over patent infringement, or on any performed contract for licensing a patent exploitation or for assignment of patent right. However, the patentee shall compensate for the damages it or he has maliciously caused to others.
Where, in accordance with the provisions of the preceding paragraph, the fact that no patent infringement compensation, no royalty for the exploitation of the patent or no patent assignment fee is refunded is obviously contrary to the principle of fairness, it shall be totally or partially refunded.